The Act directly affects every Victorian resident or person owning real or personal property situate in Victoria who wishes to make a will. Testators, whether domiciled in Victoria or not, must comply with its execution rules if they wish their will to be admitted to probate in Victoria. Minors under 18 are prima facie incapable (s 5) but may obtain court authorisation (s 20) or, if married or marrying, rely on the exceptions in s 6. Adults lacking testamentary capacity—whether through dementia, intellectual disability, or coma—fall within the statutory will jurisdiction in s 21; applications may be brought by any person and typically involve family members, guardians, administrators, or attorneys under enduring powers.

Witnesses are regulated: they must be able to see the signing (s 10), and one must be a special witness for remote execution. Interested witnesses are no longer disqualified from benefiting (s 11), removing a former trap for lay drafters. Personal representatives, whether executors named in a will or administrators on intestacy, must understand the 30-day survivorship rule (s 39) and the protection afforded for early distributions to spouses, domestic partners and children (ss 31(4), 39(4)). They are also obliged to allow inspection of the will by the broad class listed in s 50, which includes beneficiaries under prior wills, creditors, and next-of-kin.

The Court (Supreme Court, and in limited circumstances the Registrar) is both gatekeeper and drafter. Judges and registrars must evaluate complex evidentiary matrices under ss 9, 21B and 31. Legal practitioners occupy a privileged position: they may act as special witnesses, authorised persons for international wills (s 19C), and are frequently retained to prepare applications for statutory wills or rectifications. Public notaries are likewise authorised for international wills.

Domestic partners (registered or unregistered) and former spouses are expressly recognised in the definitions (s 3) and in the marriage, divorce and survivorship provisions, reflecting the Statute Law Amendment (Relationships) Act 2001 and subsequent reforms. Charities, unincorporated associations and issue (including grandchildren taking by substitution under s 45) are affected by the construction rules in Part 4. Finally, anyone dealing with a deceased estate—accountants, financial advisers, family members—must navigate the transitional provisions that may require forensic determination of which version of the Act applied to a particular will.

Testators possess the right to dispose of their property (s 4) subject to the formalities in s 7 and the court’s dispensing and rectification powers. They have the right to alter or revoke by later compliant instrument (ss 12, 15). A testator contemplating remote execution must ensure all steps occur on the same Victorian day, that a special witness participates, and that the special witness’s certificate is accurate; failure risks the document being treated as invalid unless s 9 is invoked.

Witnesses owe duties of accurate observation and certification. A special witness has additional statutory duties under s 8A(7)(d): checking compliance, ensuring the remote-execution statement appears, and recording whether an audio-visual recording was made. The Act expressly preserves other common-law and statutory duties (s 8D), so a lawyer-witness must still comply with professional conduct rules and anti-money-laundering obligations.

The Court’s duties are prescriptive. Before authorising a statutory will it must be satisfied of lack of capacity, probable intention, and overall reasonableness (s 21B) after considering the checklist in s 21A. On rectification it must be satisfied of clerical error or failure to carry out instructions (s 31(1)). In dispensing applications the Court may consider any evidence of intention (s 9(3)).

Beneficiaries have the right to inspect the will (s 50) and, in construction proceedings, to adduce admissible evidence to resolve ambiguity (s 36). They also benefit from the 30-day survivorship rule (s 39) and the anti-lapse rules in ss 43–45, which prevent gifts failing where issue predecease the testator. Personal representatives have statutory protection against liability for certain early distributions (ss 31(4), 39(4)) provided they act in good faith for maintenance, support or education.

Applicants for statutory wills or rectifications have the right to be heard if they have a genuine interest (s 21C) and may seek separate representation orders for the incapacitated person (s 21D). The person lacking capacity retains the right to appear, including through an Australian legal practitioner or enduring attorney.

The Act itself contains remarkably few direct penalties. Section 50A(1)(e) empowers regulations to prescribe penalties not exceeding 20 penalty units for contraventions of the regulations, but the principal Act relies on probate litigation and professional discipline rather than criminal sanctions.

Enforcement is primarily civil. A will that fails formalities is invalid unless the Court dispenses under s 9 or admits a statutory will under Part 3. Disputes over validity, construction or rectification are determined in the Supreme Court’s probate or equity jurisdictions. Costs usually follow the event, although the Court has broad discretion; poorly drafted applications for statutory wills can attract adverse costs orders against the applicant personally.

Breach of the remote execution safeguards does not automatically invalidate the will if the Court is satisfied under s 9 that the document was intended to be the will. However, a special witness who falsely certifies compliance could face professional disciplinary proceedings before the Victorian Legal Services Board or, in the case of a JP, removal from office. The Act expressly states that the remote procedure does not limit other duties under any Act or at common law (s 8D), preserving potential liability in negligence or for breach of fiduciary duty.

For international wills, non-compliance with the Annex does not necessarily invalidate the will if it satisfies ordinary Victorian formalities (Article 1 of the Annex). The certificate is prima facie evidence of validity (Article 12), but its absence is not fatal (Article 13).

Transitional breaches—using the wrong version of the Act—may result in the will being construed under the Wills Act 1958 or an earlier version, producing unexpected intestacy or different beneficiaries.

The Wills Act 1997 is not freestanding. It is expressly linked to the Administration and Probate Act 1958 (APA). Definitions of “Registrar”, “remuneration clause” and “domestic partner” cross-reference the APA and the Relationships Act 2008. Statutory wills must be deposited under APA Part 1 Division 1A (ss 20(7), 25(3)). Family provision claims under APA Part IV interact with the 30-day rule (s 39(4)) and the information required in statutory-will applications (s 21A(h)).

The Guardianship and Administration Act 2019 supplies administrators and guardians who have standing in statutory-will proceedings (s 21C(d)). Enduring powers of attorney are also given standing (s 21C(c)).

Commonwealth law is engaged in several places. The divorce definition in s 14(4) incorporates decrees under the Family Law Act 1975 (Cth) and recognises overseas dissolutions that are recognised in Australia. International wills engage Australia’s obligations under the 1973 Washington Convention. The Evidence Act 2008 (which applies the Uniform Evidence Law) governs admissibility in construction and statutory-will proceedings (s 22(2) preserves Part 3.10 privileges).

The Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 inserted the remote execution regime as a temporary COVID response that has now been made permanent. The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 are saved by transitional provision s 57.

The rule against perpetuities is expressly preserved (s 44(3)). The Interpretation of Legislation Act 1984 supplies the expanded definition of “document” used in s 9(6) and the general interpretation provisions.

In probate practice, the Act interacts with the Supreme Court (General Civil Procedure) Rules 2015 and the Probate Rules. A grant of probate obtained on a will later rectified under s 31 must have the rectification order attached (s 32).

The most significant recent change is the permanent adoption of remote execution. Inserted by the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (assent 23 March 2021, operative 26 April 2021), ss 8A–8D, 7(5)–(7), 10(2), 12(3), 15(4)–(5), 16(5) and related definitional amendments responded to the practical impossibility of physical witnessing during the COVID-19 pandemic. The procedure requires a special witness, real-time audio-visual presence, transmission of the document, and a detailed certification. The rationale was to maintain access to justice while preserving safeguards against fraud and undue influence. Section 8B(4) prohibits counterpart documents to ensure a single authoritative instrument.

The 2017 Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act inserted s 49A, voiding remuneration clauses unless the testator gave prior written informed consent. This responded to concerns about trustees and executors inserting self-serving charging clauses without testator awareness.

The 2014 Justice Legislation Amendment (Succession and Surrogacy) Act substantially rewrote the statutory-will jurisdiction, inserting ss 21A–21D, 22(3) and repealing several redundant sections. The change shifted the test from “best interests” to a more intention-focused inquiry (“what the intentions of the person would be likely to be”) and expanded the evidentiary checklist. Transitional provisions (ss 53–54) preserved pre-2015 applications.

The 2012 Wills Amendment (International Wills) Act implemented the 1973 Convention, adding Division 7 and the Schedule. Australia’s ratification required uniform law across jurisdictions; Victoria chose to embed the Annex directly.

Each amendment reflects a policy tension: increasing testamentary freedom and technological accessibility while guarding against abuse. The 2021 remote rules, for example, deliberately limit the procedure to Victorian executions on a single day and prohibit its use for international wills (s 19E(2)).

Although the Act does not generate a large appellate jurisprudence, several areas have proved contentious. The dispensing power in s 9 has been liberally construed. Courts have admitted informal documents ranging from unsigned drafts to suicide notes where clear testamentary intention is shown (Re Application of Fenwick (2009) remains influential although decided under the predecessor provision). Controversy persists about the weight to be given to statements of intention versus objective indicia of solemnity.

The statutory-will jurisdiction has generated more litigation. The shift in 2014 from a “best interests” to a “probable intentions” test was intended to reduce paternalism, yet applications still require extensive evidence of the incapacitated person’s values, family relationships and prior wishes. Cases frequently involve adult children seeking to vary intestacy or existing wills to exclude or favour siblings, raising allegations of conflict of interest when the applicant is also a potential beneficiary.

Rectification under s 31 is strictly limited to clerical error or failure to give effect to instructions; it cannot be used to cure bad drafting or change minds (Marley v Rawlings [2014] UKSC 2 principles have been cited with approval in Victoria). The six-month time limit (extendable only before final distribution) has produced satellite litigation about when “final distribution” occurs.

The 30-day survivorship rule (s 39) interacts uneasily with family provision claims. A beneficiary who dies within 30 days is treated as having predeceased, yet distributions for maintenance within that period are protected. This has led to disputes where executors make early payments to vulnerable family members only to face later claims by substituted issue.

International wills have produced fewer reported decisions, but practitioners report uncertainty about whether minor deviations from the Annex certificate form are fatal. Article 13 states absence or irregularity of the certificate does not affect validity, yet banks and foreign registries sometimes demand strict compliance.

Remote execution, being new, has not yet generated reported challenges, but anticipated controversies include disputes over whether all participants were “clearly seeing” the signature (s 8A(4)), whether the special witness was “reasonably satisfied” the document was identical (s 8A(7)(a)), and the evidentiary weight of the absence of an audio-visual recording (s 8C).

Most practitioners still miss several traps. First, the remote execution procedure is not a general relaxation of formality; it is a prescriptive, sequential process. If the special witness signs before the testator has directed a substitute signatory, or if the electronic transmission occurs the next day, the procedure fails and the document can only be saved by s 9. Many lawyers assume “video witnessing” is now routine; it is not.

Second, s 49A is draconian. A remuneration clause inserted without prior written informed consent is wholly void, even if the testator later ratifies it. The consent must pre-date execution; post-execution advice is too late. This catches practitioners who copy precedent wills containing charging clauses.

Third, the interaction between the 30-day rule and class gifts can produce unexpected substitution. Section 45(4) contains a subtle carve-out: if the original beneficiary was issue, failed a contingency (e.g. “attains 25”), and did not survive 30 days, their own issue do not take under the anti-lapse rule. Many wills drafted before 1997 still contain survivorship clauses that inadvertently trigger this trap.

Fourth, international wills cannot use the remote procedure (s 19E(2)). A testator wishing an international will while overseas must use traditional physical execution or rely on foreign formalities validated by s 17.

Fifth, transitional provisions are a minefield. A will executed in 1996 but with a codicil executed in 2022 may be partly governed by the 1958 Act, partly by the 1997 Act as amended in 2021. Determining which revocation or construction rule applies requires meticulous chronology.

Sixth, the definition of “domestic partner” (s 3(1)) incorporates the Relationships Act 2008 criteria. A same-sex partner who never registered the relationship but lived as a couple on a genuine domestic basis is a domestic partner for the purposes of ss 13, 14, 31(4) and 39(4), yet may still need to prove that status evidentially in contested probate.

Finally, the Court’s power to authorise a statutory will for a minor (s 20) or incapacitated adult (s 21) does not extend to deceased persons (s 21(3)). Once death occurs, the only remedy is a s 9 dispensing application on an informal document.

Compliance begins with diagnosis of the client’s capacity and circumstances. For a competent adult, obtain clear instructions, prepare a draft, and execute either physically or via the remote procedure. If remote, ensure a special witness is engaged, schedule all steps for the same day, use a platform that records timestamps, have the special witness prepare the certification statements in advance, and retain an audio-visual recording even though it is not mandatory. The will must contain the exact statements required by s 8A(7).

For clients with marginal capacity, obtain contemporaneous medical evidence. If capacity is lacking, compile the s 21A checklist before filing: draft will, size of estate, prior wills, evidence of wishes (even informal statements), family tree, potential family provision claimants, and a statement why the proposed will is reasonable. Serve all persons with a genuine interest (s 21C) and consider seeking separate representation for the incapacitated person.

When advising on existing wills, check the execution date against the transitional tables. Advise married or divorcing clients that their wills are likely revoked or altered by operation of ss 13 and 14 unless express contemplation or contrary intention wording is included.

For unincorporated associations, use the precise language of s 47 or risk the gift being construed as a purpose trust that may fail. When including a charging clause, obtain and retain the testator’s dated written consent before the will is executed.

International wills require strict adherence to the Annex formalities and use of an authorised person. The certificate must be completed in or substantially similar to the prescribed form.

Deposit court-authorised wills with the Registrar immediately. When acting as executor, do not distribute to a beneficiary who has not survived 30 days unless the distribution falls within the protected categories in s 39(4) and is genuinely for maintenance.

Maintain detailed file notes of instructions, capacity assessments, and explanations of clauses that might be challenged. In an era of increasing remote execution, retain metadata and electronic originals in tamper-evident formats. Finally, diarise the six-month rectification window from the grant of probate; missing it is fatal unless final distribution has not occurred.

By systematically addressing capacity, formalities (or dispensation), construction defaults, and transitional rules, practitioners can produce robust testamentary instruments that minimise the risk of costly litigation.