Online Will kits and post office Will forms are cheap and quick, and for some people they may be enough. For many families, though, a DIY Will creates problems that only appear after death, when the will-maker can no longer explain what they meant.
The risks are greater for families with assets or relatives in more than one country. A Will kit designed for a single Australian household rarely asks about a flat in Kuala Lumpur, shares in a Hong Kong company, a family trust, or children living in Singapore and Shanghai.
What makes a Will formally valid
Each Australian state and territory has its own Wills legislation, but the core requirements are broadly similar. In general, a Will must be in writing, signed by the will-maker (or by someone at their direction and in their presence), and the signature must be made or acknowledged in the presence of two witnesses who are present at the same time and who then sign. The will-maker must also have testamentary capacity and must know and approve of the contents.
In Victoria, Wills can also be signed electronically and witnessed by audio-visual link under the Wills Act 1997 (Vic), but the remote procedure has additional conditions. These include that participants are in Victoria and that a special witness, such as a lawyer or justice of the peace, takes part and records certain matters on the Will. A DIY Will signed over a video call without following that procedure may not be validly executed.
Common errors in DIY Wills
Witnesses who are beneficiaries
The rules differ between states. In Victoria, a witness is not disqualified from inheriting merely because they witnessed the Will, although it may invite questions about whether the will-maker freely approved the gift. In New South Wales, a gift to an attesting witness can fail unless one of the exceptions in the Succession Act 2006 (NSW) applies.
Attachments, staples and missing pages
Lists of assets attached to a kit Will, or signs that pages have been removed or replaced, can raise doubts about what the Will contains.
Handwritten alterations
Crossing out a name or adding a gift by hand after signing may have no effect unless the alteration is itself signed and witnessed as the law requires.
Revocation by marriage, and divorce
In Victoria and other states, marriage generally revokes an existing Will unless it was made in contemplation of that marriage. Divorce generally revokes gifts to, and appointments of, the former spouse, but separation alone does not.
Gifts that fail
Gifts can fail when a beneficiary dies first, when the asset described has been sold, or when a description is too vague to identify. Kits often lack proper substitution clauses and residuary provisions, so part of the estate may pass on intestacy instead of under the Will.
Informal Wills and the court’s dispensing power
When a document does not meet the formal requirements, all may not be lost. Section 9 of the Wills Act 1997 (Vic) allows the court to admit a document to probate if it is satisfied the deceased intended it to be their Will. Other states have similar powers, including s 8 of the Succession Act 2006 (NSW).
Relying on this power, however, usually means extra evidence, affidavits from witnesses and family members, notice to people whose interests are affected, and sometimes a contested hearing. That adds delay and legal costs, often paid from the estate, and can strain family relationships.
What Will kits generally do not handle
Assets outside the estate
A Will only deals with assets the will-maker owns personally at death. Superannuation is paid by the fund trustee, often according to a death benefit nomination. Property held as joint tenants passes to the surviving owner by survivorship. Assets held in a family trust or company are controlled by the trust deed, the constitution and the people who hold control positions.
Cross-border assets and multiple Wills
Families with assets overseas often use separate Wills for different countries. A standard kit revocation clause, which revokes “all previous Wills”, can unintentionally cancel a Will made in Malaysia, Singapore or Hong Kong. An Australian kit Will that tries to cover overseas assets may also face difficulties abroad, depending on each country’s laws.
Testamentary trusts
A testamentary trust created by a Will can offer flexibility, protection for vulnerable beneficiaries, and potential tax advantages for some families. Kits rarely include them properly, and whether one suits a family needs advice.
Family provision risk
A Will that leaves out a spouse, child or other eligible person may be challenged under family provision laws. Kits cannot assess that risk. In NSW, the court may also reach some property outside the estate.
Language and understanding
Where the will-maker does not read English well, there can later be questions about whether they understood and approved the Will. A Will written in another language may be valid, but it will usually need a translation for probate, and errors in translation or terminology can cause disputes.
When a simple Will may be fine
A simple Will may be appropriate where a person’s assets are modest and all in one Australian state, their family situation is straightforward, they have no overseas assets, trusts or companies, and they are confident they understand the formal requirements. Even then, it is worth checking superannuation and joint ownership, and reviewing the Will after major life events such as marriage, separation or the birth of a child.
Questions to discuss with your lawyer
- Which of my assets will actually be covered by my Will?
- Do I need separate Wills for assets in other countries, and how will they interact?
- Has my marriage, separation or divorce affected my existing Will?
- Is anyone likely to make a family provision claim, and how might that be addressed?
- Would a testamentary trust be useful for my family?
Frequently asked questions
Is an online Will legally valid in Australia?
It can be, if it is printed or completed and then signed and witnessed according to the law of the relevant state, or signed using an authorised remote procedure. Many problems arise not from the template itself but from how it is completed and signed.
What happens if a DIY Will was not witnessed properly?
The court may still be asked to admit it as an informal Will, but that usually requires extra evidence and cost, and there is no guarantee of success. If the court does not admit it, an earlier Will or the intestacy rules may apply.
Can I use one Australian Will for assets in Malaysia or Hong Kong?
Sometimes, but foreign rules on recognition, formalities and probate vary. Many families use coordinated Wills for each country, which need careful drafting so that one does not revoke another.
Does getting married cancel my Will in Victoria?
Generally yes, unless the Will was made in contemplation of that marriage.
Every family’s situation is different, and the answer often turns on details. Book a consultation so we can review your documents and circumstances before you act.
How Chua Tan Associates can help
Chua Tan Associates prepares Wills for families with assets and relatives in Australia and across Asia, and reviews existing DIY and kit Wills to identify problems while they can still be fixed. We coordinate Australian Wills with Wills in other countries, working with local lawyers overseas, and consider superannuation, jointly held property, trusts and companies as part of the plan. We also assist executors where a DIY Will has caused problems after a death. Justin Chua trained in accounting (Bachelor of Commerce, accounting major), is an affiliate member of STEP (the Society of Trust and Estate Practitioners), and advises on the legal and tax structure of family wealth together. He is a Nationally Accredited Mediator and an Accredited Family Business Advisor. The firm’s notary public assists with documents for use overseas, and we advise in English, Mandarin and Cantonese.
Important: This article is general information only and must not be relied on. It is not legal, tax or financial advice, does not take your circumstances into account, and may not reflect changes in the law after publication. Laws of other countries may also apply. Do not act or refrain from acting on the basis of this article. Reading it or contacting us does not create a lawyer–client relationship. Please book a consultation for advice on your situation.
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Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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