Many people believe that once a will is signed and witnessed, everything is in order. In Victoria, that is not always the case. When the person who prepared the will is not a lawyer, the Supreme Court may require further evidence before it will grant probate or letters of administration.
Why the Court asks more questions
A will prepared by a lawyer is generally accompanied by a professional record of how it came about. When a friend, relative, or the deceased themselves prepared it, the Court has no such assurance. So it looks for evidence of three things:
- Capacity. The deceased had the mental capacity to make a will at the time it was signed.
- Knowledge and approval. The deceased understood and approved what was written in the will.
- No undue influence. The person who prepared the will did not pressure, influence, or take unfair advantage of the deceased.
What evidence is usually required
Affidavit from the person who prepared the will. The Court will usually require an affidavit of evidence of preparation of the will. It must fully explain the circumstances in which the will was prepared.
Affidavits from other people. Further affidavits may be needed to show that the deceased knew and approved the contents of the will before signing.
Medical evidence. The Court may also require an affidavit from a doctor or other medical professional confirming that the deceased had capacity when the will was signed.
What this means for families
Gathering this evidence takes time and often costs money. It can also be difficult if the person who prepared the will is unavailable, has passed away, or no longer remembers the details. All of this falls on the family at a time when they are grieving.
How to avoid the problem
A will prepared by a lawyer does not remove every risk, but it builds the right safeguards in from the start. Your capacity is considered, your instructions are recorded, and your wishes are put in a form the Court can readily rely on.
If you already have a home-made will, a DIY kit will, or a will prepared by someone who is not a lawyer, it is worth having it reviewed now rather than leaving your family to deal with the consequences later.
Speak with us
Respect Wills & Estates is a boutique estate planning and estate administration law firm based in Bentleigh, serving Bayside Melbourne, including Brighton, McKinnon, Highett, and Moorabbin. Contact us to arrange a review of your existing Will, to prepare a new one or if you require assistance with a Grant of Probate or Letters of Administration.
This article is general information only and is not legal advice. Source: Supreme Court of Victoria, Wills and Probate.
