Introduction
You’ve decided what you want to leave to whom. You’ve drafted your will. Now you’re ready to sign it.
But wait—not just any signature will do. In Victoria, there are strict legal requirements for how a will must be signed and witnessed. Get these wrong, and your will could be invalid, leaving your estate to be distributed according to intestacy laws instead of your wishes.
At Oakhill Lawyers in Carlton, we’ve seen issues executor’s have faced to try and prove an invalid will. Here’s exactly what you need to do to ensure your will is valid so your family are not left trying to prove its validity.
Why Are There Strict Signing Requirements?
You might wonder: Why does it matter exactly how I sign my will? It’s still my signature.
The answer is that strict formalities exist to:
Prevent fraud: Strict requirements make it harder for someone to forge a will or trick you into signing something.
Ensure you intended it: By following formal procedures, the law can be confident you really wanted to make a will.
Reduce disputes: When wills are properly signed, beneficiaries are less likely to challenge them.
Provide clarity: Witnesses can testify about the circumstances of signing if disputes later arise.
Without these formalities, wills would constantly be challenged, and the courts would be clogged with disputes.
The Strict Legal Requirements for a Valid Will in Victoria
Requirement 1: You Must Have Mental Capacity
Before anything else, you must be of sound mind:
You must:
– Understand that you’re making a will
– Know what property you have
– Know who your family members are (spouse, children, dependents) and appreciate the nature of claims by anyone excluded in your will
– Understand how the provisions of your will affect them
– Not be suffering from mental disorder or delusion that affects your judgment
What this means:
– You can’t be confused about your assets
– You can’t be delusional about family members
– You can’t be under undue influence from others
– Dementia or Alzheimer’s can affect capacity
If there’s any concern about mental capacity:
– See your doctor and get confirmation
– Have the doctor’s letter kept with the will
– Consider video evidence of capacity during signing
– Inform the lawyer preparing your will about capacity concerns
Requirement 2: The Will Must Be In Writing
Your will must be a written document. It cannot be:
– A voice recording
– A text message
– An email
Although these matters may be presented to the court as evidence of your wishes, they do not constitute a valid will under the Wills Act 1997.
Requirement 3: You Must Sign It
Your signature is required:
The signature must:
– Be signed by you or by some other person in hte presence of and at your direction
– Be signed with the intention of executing a will (usually at the foot of the will)
– It must be signed in the presence of at least 2 witnesses who must attest and sign the will in your presence
– Can be signed electronically
Can you use a mark instead of a signature?
If you can’t write due to disability or illness:
– You can make a mark (cross, thumbprint, initials) instead
– But two witnesses must see you make the mark
– Both witnesses must certify they saw you make it
– This is still valid, but more complex
Requirement 4: Two Witnesses Are Required
Your signature must be witnessed by two independent people:
Who can be a witness:
– Anyone aged 18 or over
– Who is of sound mind
– Who is present when you sign
Who should not be a witness:
– A beneficiary (someone who inherits under the will)
– A spouse of a beneficiary
– A child of a beneficiary
– Anyone who is blind or cannot read (the Act specifically says that a blind person cannot be a witness)
– A person with a conflict of interest
What should the witnesses do:
- See you sign the will
- Sign the will themselves (usually on a witness page)
- Print their name
- Include their address
- Sign each page of the will
Best practice:
– Sit at a table with both witnesses
– Tell them you’re signing your will
– Sign in front of them
– Watch them both sign the witness page
– Everyone stays until all signatures are complete
Requirement 5: The Signature Must Be Intentional
Your signature must be made with intention to sign the will.
This means:
– You must intend to make a will
– You must understand what you’re signing
– You can’t be signing under duress or undue influence
What can affect this:
– Being pressured by a family member
– Being confused about what you’re signing
– Being under the influence of drugs or alcohol
– Being coerced
Protection: This is why having a lawyer prepare your will is valuable—the lawyer can confirm you understand and are signing freely.
Step-by-Step: How to Properly Sign Your Will
Before Signing Day
- Have a lawyer prepare your will
– A lawyer ensures it complies with all requirements
– The lawyer can confirm your capacity
– The lawyer can provide guidance on signing procedures - Plan who will be your witnesses
– Identify two independent people aged 18+
– Ensure they’re not beneficiaries or related to beneficiaries
– Confirm they’re available for a short meeting - Arrange a time and place– Choose a quiet, comfortable location (home, lawyer’s office, library)
– Ensure both witnesses can attend at the same time
– Allow 15-30 minutes
On Signing Day
- Review the will with your witnesses present
– Read through the will (or at least key parts)
– Confirm this is your will and your instructions
– Ask if the witnesses understand they’re witnessing your signature - Sign the will
– Use your normal signature
– Sign at the end of the document and on each page
– Sign deliberately and clearly
– Watch the witnesses see you sign - Witnesses sign immediately
– The witnesses sign the witness page and at the bottom of each page
– They print their name
– They provide their address
– They sign with you still present - Keep the original safely
– Do not fold, tear, or modify the will after signing
– Keep in a safe place (safe deposit box, lawyer’s file, or registered with the Supreme Court)
– Tell your executor where the will is kept
Common Mistakes That Can Invalidate a Will
Mistake 1: Only One Witness
Consequence: Will may be invalid
Solution: Always have two witnesses
Mistake 2: An Executor as Witness
Consequence: That appointment may be deemed invalid
Solution: Use only independent witnesses
Mistake 3: Witnesses Don't Sign
Consequence: Will may be challenged or invalid
Solution: Ensure both witnesses sign
Mistake 4: Changing the Will After Signing
Consequence: Changes may not be valid; entire will may be questioned
Solution: If you need changes, make a new will or formal codicil (amendment)
Mistake 5: Failing to Read the Will Before Signing
Consequence: You can’t claim you didn’t understand it
Solution: Always read your will before signing (or have the lawyer read it to you)
Mistake 6: Having Witnesses Who are hard to track down
Consequence: Courts sometimes require witnesses to confirm they witnessed your signature as part of the application for probate. An affidavit of due execution is often asked if there is some question about the validity of the will (eg. not all pages signed, witness used a different pen).
Solution: Ensure witnesses are people your family can track down if need be (or use your lawyer as your witness).
What If You Make a Mistake?
If you realize you made an error in signing, or you’re worried your will might not be valid:
Don’t panic. Options include:
Make a New Will
The simplest solution. Execute it with full compliance and it will override the old one.
Make a Codicil
A formal amendment to your existing will. Must also be signed with witnesses.
Get a Lawyer's Confirmation
If you’re unsure about a will’s validity, a lawyer can review it and advise.
Seek Court Guidance
In some cases, courts can validate wills that don’t strictly comply if there’s evidence of intent. But this is expensive and uncertain.
Digital Wills and E-Signatures: Valid in Victoria?
You might wonder: Can I use DocuSign or electronic signatures for a will?
Yes you can. There are however additional requirements including:
A lawyer (or justice of the peace) must be one of your witnesses and all witnesses need to be present in Victoria. All parties must sign on the same day.
Testamentary Capacity: Special Considerations
If you have any health conditions that might affect your capacity, get extra protection:
Get a doctor’s confirmation:
– See your GP
– Explain you’re making a will
– Ask the doctor to document you’re of sound mind
– Get a letter for your file
Video evidence:
– Some people video-record the signing
– The video shows you understand and sign freely
– Helpful if capacity is later questioned
Lawyer presence:
– Having a lawyer prepare the will adds credibility
– The lawyer can testify about your capacity if needed
How Oakhill Lawyers Can Help
Don’t leave your will to chance. At Oakhill Lawyers, we:
– Prepare wills that comply with all legal requirements
– Arrange proper signing
– Ensure your mental capacity is documented
– Keep your original will safely
– Advise on updates or changes
– Help if a will needs to be challenged or validated
Your Checklist for a Valid Will
Before signing your will, confirm:
– A lawyer has prepared or reviewed the will
– You’ve read the entire will and understand it
– You’re of sound mind and not under pressure (there is no undue influence)
– Two independent witnesses are present (not beneficiaries)
– Both witnesses are aged 18+
– You sign at the end with your normal signature
– Both witnesses see you sign
– Both witnesses immediately sign and print their names
– Witnesses provide their addresses
– The original will is kept in a safe place
– Your executor knows where the will is kept
– If capacity is questionable, you have medical confirmation
Ready to Make a Valid Will?
If you’re ready to create or update your will, contact Oakhill Lawyers in Carlton.
We’ll ensure:
– Your will complies with all legal requirements
– You sign it properly with competent witnesses
– Your wishes are carried out as intended
– No future disputes about validity
Call Clare: 0421 656 662
Email: clare@oakhilllawyers.com.au
We’re available in Carlton, Rosanna, or we can come to you. We also offer fixed fees for will preparation so you know exactly what you’ll pay
About Oakhill Lawyers
Based in Carlton, Oakhill Lawyers specialises in estate planning and deceased estate administration throughout Melbourne. We’re committed to making complex matters understandable and manageable.
