Will Kits vs a Lawyer in Victoria: Is a DIY Will Legal?

You can buy a will kit for less than the cost of a dinner out, or fill one in online in an afternoon. So it’s fair to ask: is a will kit legal in Victoria, or do you need a lawyer to make a will?

Below we explain what makes a will valid in Victoria, where DIY wills tend to go wrong, and when a kit is fine versus when it’s worth having a lawyer involved.

What makes a will valid in Victoria?

The rules are in the Wills Act 1997 (Vic), section 7. In plain English, a will is valid if:

• It’s in writing.
• It’s signed by you, or by someone else signing for you, in your presence and at your direction.
• You sign it intending it to be your will. The signature doesn’t have to be at the bottom of the page, although that’s where it belongs.
• You sign in front of two or more witnesses who are all present at the same time.
• At least two of those witnesses then sign the will in your presence. They don’t have to sign in front of each other.
• You are at least 18 years old.

Where DIY wills tend to go wrong

Problems with home-made wills often aren’t about the wording at all. They come from how the will was signed, or from what the will-maker assumed it would cover.

1. Signing and witnessing mistakes

Common slip-ups include:

• only one witness, or witnesses who weren’t in the room at the same time
• signing on one day and having the witnesses sign on another
• a witness signing when the will-maker wasn’t there
• handwritten changes made after signing that weren’t signed and witnessed

If a will doesn’t meet section 7, it isn’t formally valid. The Supreme Court of Victoria can still accept it under section 9 of the Wills Act if it’s satisfied you intended the document to be your will. But that means an application to the court, evidence about what you intended, and extra cost and delay for your family at an already hard time.

2. Assuming the will covers your super and jointly owned property

This is the one that catches most people out. Your will only deals with assets that form part of your estate, and two big assets often don’t.

• Superannuation. The money in your super account doesn’t automatically form part of your estate. Your fund pays it according to your death benefit nomination, or its own rules if there’s no valid nomination. Our Will Checklist explains why super may not follow your will.
• Property you own as joint tenants. When a joint tenant dies, the property passes to the surviving owner automatically, under the right of survivorship. It doesn’t go through your will. If you own as tenants in common, your share does form part of your estate and your will can deal with it.

So, a kit will that says “I leave everything to my children” may leave them far less than you think.

3. Blended families

Kits are written for straightforward families. They’re not designed for second marriages, stepchildren, or children from more than one relationship.

Here’s a hypothetical example. Say Mark, 58, remarries. He and his new wife, Helen, buy a home in Box Hill as joint tenants. Mark then fills in a kit will leaving everything to his two daughters from his first marriage. When Mark dies, the Box Hill home goes straight to Helen by survivorship, whatever his will says. His daughters may receive very little. Nobody did anything wrong. The kit just couldn’t see the problem.

Victorian law also lets certain people apply to the court if they believe your will doesn’t make proper provision for them. Eligibility is set out in Part IV of the Administration and Probate Act 1958 (Vic), and the categories and conditions are more specific than many people expect. Applications generally have to be made within six months of the grant of probate or letters of administration. A carefully drafted will can’t stop every claim, but it can make your reasons clear and reduce the risk of a dispute. Read more in Who can contest a will in Victoria?.

4. Getting married cancels your will

Under section 13 of the Wills Act, getting married revokes (cancels) your existing will. The main exception is a will made in contemplation of that marriage. It happens more than you’d think. Someone makes a kit will at 25, marries at 31, and never realises the will stopped counting on their wedding day.

Divorce works differently. Under section 14, a divorce cancels any gift to your former spouse and their appointment as executor (and, in most cases, as trustee or guardian), unless your will shows you wanted those to stand. The rest of the will stays in place. Separating without a divorce doesn’t trigger this rule, so it’s worth updating your will as soon as a relationship ends.

Will kit vs a lawyer: a fair comparison

We’re not going to tell you a will kit is always a bad idea. For some people it does the job. Here’s an honest comparison.

Assets held in a family trust or company are generally not owned by you personally, so your will may not deal with them the way you’d expect. What happens to control of a trust depends on its trust deed. That alone is a good reason to get advice if you have one.

The cost of a lawyer-drafted will is often small compared with the cost of an estate dispute, or a court application to fix a will that wasn’t signed properly.

How we make your will

Our will drafting process is simple and fully digital, so you can do it all from home. You can start by completing our online Will Checklist. It asks about your family, your executors, what you own and what you’d like to happen, and lets you upload documents such as your super statements, rates notices and current will.

Once we receive your checklist, we’ll verify your identity through InfoTrack, then review your instructions and prepare your will. If anything needs a closer look, such as super, jointly owned property, a blended family or a family trust, we’ll raise it with you before anything is signed.

Common questions about will kits

This is general information, not legal advice. Every situation is different, so get in touch about yours.