On this page: This page outlines how to make a Will.

How to Make a Will

How do I make a will: 

There are a number of formalities when writing a will. If you don’t address these requirements the will may be challenged.   

There should be at least two people to witness the Will and you must sign the Will in front of them and they must sign the Will as well. They need to sign the foot of the page or pages if there is more than one page, remember each page must be signed by them, and you must use the same pen.  

You need to be able to show that you have the mental capacity to sign the Will meaning that you are of sound mind, and not affected or impacted by a disorder or delusion that impacts your ability to show testamentary capacity. 

To assess whether you have this capacity you must be able to understand, and be aware of the following; 

  • What it is your writing, that is what a Will is itself 
  • You need to know approximately what you have to give to others in your Will 
  • You must understand any reasonable claims that may be made against you for the property in your Will. 

It is important that you are aware that people may challenge your Will, one way to protect your Will is to show that you had the capacity to make the Will. You are able to speak with a doctor to assess that you have the capacity to make a will and will sign an affidavit, a legal document, confirming your mental capacity. 

To see an example of a Will, visit the Legal Handbook 

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

Aboriginality
The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

Conflict
VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.