What we help with / Wills
Making a will in Victoria
A Victorian will, explained in Polish or English, for people whose family lives in Australia, in Poland or in both.
In short
- A Victorian will must be in writing, signed by you in front of two witnesses present at the same time, who then sign it in front of you.
- A witness who receives a gift under your will keeps it, but witnesses who receive nothing are the safer choice.
- Marriage generally revokes an earlier will, and divorce cancels gifts to a former spouse.
- Some family members can apply to court for provision from your estate, usually no later than six months from the grant of probate.
- Cost and next step: before work starts, we give you a fixed fee in writing or, where that is not possible, a written estimate. Call 1800 776 529. We reply within one business day.
Why a will matters when family lives in two countries
Without a will, your Victorian estate passes under the intestacy rules (Administration and Probate Act 1958 (Vic) pt IA), not as you would choose. A will lets you choose your beneficiaries and your executor, who deals with the estate.
If your children live in Poland, think about who can deal with banks, property and government offices here.
If you own a flat, house or land in Poland, Polish law may still apply to it. We do not advise on Polish law. Our guide Wills for Polish-Australian families covers the detail.
How to sign a will so that it is valid
Under the Wills Act 1997 (Vic) s 7:
- the will must be in writing;
- you sign it, or someone signs it for you in your presence and at your direction, intending it to be your will;
- you sign, or acknowledge your signature, while at least two witnesses are present together; and
- at least two witnesses sign it in your presence, though not necessarily in each other’s.
If a step is missed, the Supreme Court may still accept the document as your will (s 9), but only on a separate application.
Who can be a witness
A person who cannot see and attest your signature cannot be a witness (s 10).
A witness, or the witness’s spouse or domestic partner, keeps any gift under the will (s 11). Even so, ask two adults who receive nothing, so that no one can say a witness had a stake in it.
Marriage, divorce and separation
Marriage revokes an earlier will, unless it was made in contemplation of that marriage or states that it was made in contemplation of marriage generally (s 13). Gifts to, and the appointment of, the person you are married to when you die also survive.
After a divorce, a gift to your former spouse fails and they can no longer act as your executor, unless the will shows you intended otherwise (s 14). Separation alone changes nothing, so review your will when a relationship ends.
Can a will be signed by video?
Yes, but only under the remote execution procedure in s 8A:
- every step must take place on the same day and within Victoria, so it is not available if you or a witness is in Poland or another state;
- one witness must be a special witness, such as an Australian lawyer or a justice of the peace, who signs last and checks that the procedure was followed; and
- the witnesses watch you sign by audio visual link, then sign the copy sent to them electronically while you watch, and the will records how it was witnessed.
If everyone is in Victoria, we can arrange for your will to be signed by video.
Family provision claims after a death
The Supreme Court or the County Court can order provision from an estate for an eligible person, if the deceased had a moral duty to provide for them and did not do so adequately (Administration and Probate Act 1958 (Vic) s 91).
Eligible persons include a spouse or domestic partner, children (adult children too), stepchildren and, in some cases, a former spouse, grandchildren and household members (s 90). The definition does not depend on where a person lives, so relatives in Poland can qualify too.
The deadline is six months from the grant. The court may allow more time if asked before the estate is finally distributed (s 99). The court considers evidence of your reasons (s 91A), so it helps to record them.
Questions
Have another question? Phone 1800 776 529 or send us a message.
Yes, if it meets s 7. If the signing or witnessing goes wrong, your family may have to ask the court to accept it (s 9).
No. We prepare wills under Victorian law only. A lawyer in your state can prepare a will under that state’s law.
Polish law may apply to property in Poland, and we do not advise on it. See Wills for Polish-Australian families. Where needed, a lawyer or notary in Poland advises on that side with us.
Law referred to
- Wills Act 1997 (Vic) ss 7, 8A, 9, 10, 11, 13, 14
- Administration and Probate Act 1958 (Vic) pt IA, ss 90, 91, 91A, 99
Radek Dajer is an Australian lawyer and notary public who speaks Polish. He practises Australian law and does not advise on Polish law; for questions of Polish law, we bring in a lawyer or notary in Poland.
Talk to us about your will.
Send an enquiry or call, and within one business day we will arrange a meeting in Polish or English.
Phone: 1800 776 529
Email: info@polishlawyer.com.au
Hours: Monday to Friday, 9 am to 5:30 pm
Office: 435 Nepean Highway, Frankston VIC 3199