What happens if there is no valid will in Victoria?

A further category is partial intestacy: a valid will that does not deal with all of the estate, for example because a gift fails. The part not effectively disposed of passes under the intestacy rules, while the will governs the rest.

Before concluding there is no will, make and record reasonable searches. Evidence of searches is often needed later, whether for an administration application or an application to prove a copy.

• The deceased's home, papers, safe and computer files.
• Law practices the deceased used, including former practices.
• Banks, trustee companies and other safe-custody holders.
• The Supreme Court, which can hold wills deposited for safekeeping.
• Accountants, financial advisers and close family members.

Under the Wills Act 1997 (Vic), a will is ordinarily in writing, signed by the will-maker (or by someone at their direction) with the intention of executing a will, and signed in the presence of two witnesses present at the same time, who each sign in the will-maker's presence. A document that departs from those requirements is not automatically ineffective.

A will's effect can also be changed by later events. Marriage generally revokes an earlier will, subject to exceptions, and the end of a marriage or domestic partnership can revoke gifts to the former partner, subject to contrary intention. Those consequences depend on the facts and the statutory provisions, and should be assessed rather than assumed.

Section 9 of the Wills Act allows the Court to admit a document that was not executed in the required way if it is satisfied the deceased intended the document to be their will. The Court's unusual applications guidance notes this power where a will was not signed in the presence of two witnesses. Informal documents can include unsigned drafts, handwritten notes and electronic records.

These applications depend heavily on evidence of the deceased's intention and of the circumstances in which the document was created. The outcome cannot be predicted from the document alone. Where a section 9 application succeeds, the grant is usually probate (if the document appoints an executor who applies) or administration with the will annexed.

If the deceased made a will but the original cannot be found, the estate is not automatically intestate. The Court's guidance explains that an application may be made to prove a copy where an original has been lost or destroyed without an intention to revoke it. Where the deceased held the will and it cannot be found, the Court will generally presume it was destroyed with the intention of revoking it, and evidence is needed to rebut that presumption. The missing original will guide explains the evidence involved.

Where no document operates as the deceased's will, the estate is distributed under the intestacy provisions of the Administration and Probate Act 1958 (Vic). The person entitled applies for letters of administration. Who has priority to apply, and who inherits, depends on whether there is a partner, children (including children from other relationships) and other relatives. The letters of administration guide sets out that roadmap; this guide does not repeat it.

Intestacy does not prevent eligible people from seeking family provision where the statutory distribution does not make adequate provision for them, subject to the time limit in section 99.

It may take time to establish whether a document operates as a will. Meanwhile the estate's assets still need protection. Secure property, maintain insurance, and keep the documents found in their existing condition. Avoid distributing personal items or dealing with assets on the assumption that a particular document will or will not be admitted.

• Record where and when each document was found, and by whom.
• Do not write on, unstaple or separate any document.
• Identify who would be entitled under each possible outcome.
• Tell affected family members what is being done, without predicting the result.
• Obtain advice before any application is filed, because the choice of application depends on the assessment.

Where a section 9 application is considered, relevant evidence may include how and when the document was created, whether the deceased referred to it as their will, whether it was kept with important papers, and whether it appears to be a final expression of wishes rather than notes or a draft. Evidence from people who discussed the document with the deceased may be important. The weight of that evidence is for the Court.

We can review any document the deceased left, advise on searches and the evidence needed, and explain whether the estate is likely to proceed under a will, an informal will, a copy or intestacy. We do not predict how the Court will treat a document, but we can prepare the evidence it will require.

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