Many of our clients are more comfortable in Mandarin, Cantonese, Hokkien, Malay or another language than in English. Some are elderly, some have difficulty writing, and some live overseas. All of them can make a valid Victorian Will, but extra care is needed so the Will truly reflects their wishes and stands up if it is ever questioned.
Understanding what you sign
A Will is only valid if the will-maker knew and approved of its contents. If you do not read English well, a lawyer must be able to show that the Will was properly explained to you before you signed it. Good practice includes:
- receiving advice and instructions in your own language, either from a lawyer who speaks it or through a qualified, independent interpreter;
- not relying on a child or other family member who benefits from the Will to interpret;
- having the Will read or translated to you in full before signing;
- keeping a record, such as a statement by the interpreter, confirming this was done.
These steps protect your family. If a relative later claims you did not understand the Will, this evidence is often decisive.
If you cannot sign your name
In Victoria, a Will can be signed by another person on the will-maker’s behalf, in their presence and at their direction. This helps people who cannot write because of illness, injury or disability. The signing must still be witnessed by two adult witnesses present at the same time. A lawyer will usually prepare additional evidence of how the Will was signed, to avoid delays at the probate stage.
Signing from a distance
Victorian law now allows Wills to be witnessed by audio-visual link in some circumstances, with strict requirements, including the involvement of a special witness such as a lawyer. This can help clients who are overseas, unwell or in aged care, but the process must be followed exactly. It is not the same as simply signing on a video call.
Capacity and early dementia
To make a Will, you must understand what a Will is, broadly what you own, who might expect to benefit, and the effect of the choices you are making. A diagnosis of dementia, or having an administrator or guardian appointed, does not automatically mean you cannot make a Will. It does mean the lawyer should take particular care, and a medical assessment of capacity at the time of signing is often wise.
If an older family member’s memory is declining, it is better to put their Will and powers of attorney in place sooner rather than later.
Powers of attorney too
The same principles apply to enduring powers of attorney. Documents made overseas are often not accepted by Australian banks or by Land Use Victoria. If you own property in Victoria, a Victorian enduring power of attorney, explained to you in your own language, is usually worthwhile.
How Chua Tan Associates can help
Our lawyers advise directly in English, Mandarin and Cantonese, so instructions do not have to pass through family members. We can attend clients at home, in hospital or in aged care, and we assist clients overseas. Our firm also has a notary public for documents that need to be used abroad.
Related reading
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. Victorian law unless stated otherwise.
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