Why Every Adult Needs a Will — Regardless of Age or Wealth

A Will is a legal document that records your wishes about what should happen to your assets — your property, money, personal belongings, and other possessions — after you die. At its core, a Will does four things: it names an executor, it allows you to appoint a guardian for any minor children, it specifies who receives what, and it gives those instructions legal force.

The executor is the person you appoint to administer your estate. They are responsible for locating your Will, applying for probate, identifying and valuing your assets, paying your debts, and ultimately distributing what remains to your beneficiaries. Choosing the right executor — someone who is organised, trustworthy, and willing to take on the role — is one of the most important decisions you will make when preparing your Will. Without a Will, a court must appoint an administrator, which is a process that costs time and money, and may result in someone acting who you would never have chosen.

If you have children under the age of 18, a Will is the only legal mechanism available to you to nominate a guardian — the person who would have day-to-day care and responsibility for your children if both parents died. This alone is reason enough for any parent to make a Will immediately. Without a nomination, the decision about who raises your children falls to the Family Court, which may not know — or share — your wishes about who is best placed to fill that role.

A Will also allows you to make specific gifts: to leave a particular item of jewellery to one person, to ensure a family home stays within the family, or to provide for a charity that matters to you. Without a Will, none of these specific wishes can be given effect. The distribution of your estate will instead be governed entirely by a statutory formula that takes no account of your individual relationships, your family dynamics, or the particular circumstances of the people who depend on you.

Under the Victorian intestacy rules, your estate is divided according to a set hierarchy of relatives. If you have a spouse or domestic partner and no children, your entire estate passes to that partner. If you have a spouse and children, the distribution is divided between the spouse and children according to a formula that depends on the size of the estate. If you have children but no spouse, your estate is divided equally among your children. And so on down through the statutory hierarchy — to parents, siblings, and more distant relatives. If no eligible relatives can be found, your estate ultimately passes to the State of Victoria.

The intestacy rules operate mechanically, without regard to the realities of modern family life. They do not account for the fact that you may have had a close, long-term de facto relationship with someone who is not yet formally recognised under the legislation. They do not know that one of your children has a disability and needs more support than the others. They cannot know that you wished to leave something to a friend who supported you through illness, or to a charity you supported throughout your life.

A particularly significant risk arises for unmarried de facto couples. Under Victorian law, a de facto partner may be entitled to claim against an intestate estate — but this is not automatic. Whether a relationship qualifies as a "domestic partnership" for the purposes of the Act can be disputed, and a surviving partner may need to bring a court application to establish their entitlement. During that time, they may have no right to deal with the deceased's assets — including the home they shared. This is a serious and distressing situation that is entirely preventable with a properly made Will.

There is a widespread assumption that Wills are for older people — people with mortgages, superannuation balances, and grown children. This assumption is wrong. In Victoria, you can make a valid Will from the age of 18. From that same age, you can own property, hold bank accounts in your own name, own a car, and accumulate superannuation. You may also be in a de facto relationship. If you die without a Will, all of these assets are governed by the intestacy rules — and the outcome may not be what you would have wanted.

Consider a 24-year-old who owns a car, has a few thousand dollars in savings, and has been living with their partner for two years. If they die without a Will, the intestacy rules may direct their assets to their parents — not their partner. This is not because the law is deliberately unfair; it is simply because the law cannot know individual circumstances, and a long-term de facto partner may not meet the formal statutory definition without making a court application to establish their entitlement.

Young adults who have started accumulating superannuation should also understand that super is not automatically dealt with by a Will. Superannuation passes outside of the estate unless specific steps are taken — either through a binding death benefit nomination made through the superannuation fund, or through a Will that the fund is directed to follow. If you have made no nomination, the trustee of your superannuation fund has a discretion about who receives your death benefit. That discretion may not be exercised in the way you would have chosen.

There is also the increasingly important question of digital assets. A young person today may hold significant value in digital accounts — cryptocurrency wallets, online investment accounts, digital media collections, or even income-generating social media profiles. Without a Will that addresses these assets and provides access credentials (or a mechanism for accessing them), these assets may be lost entirely. A Will gives you the opportunity to deal with your digital life in the same deliberate way as your physical one.

One of the most common reasons people give for not having a Will is that they do not consider themselves wealthy enough to need one. This reasoning misunderstands what a Will is for. The purpose of a Will is not simply to distribute a large estate efficiently — it is to give legal force to your wishes and to spare your family the confusion, expense, and conflict that arises when those wishes are unknown.

Even a modest estate — a car, a bank account, a share in a property, personal belongings with sentimental rather than financial value — can become a source of significant family conflict if there is no direction about how it is to be dealt with. The conflict is rarely about money alone. It is about grief, family dynamics, and the absence of clear instruction. Who gets Mum's jewellery? Who takes the car? Are the savings divided equally or does one sibling get more because they provided more care? Without a Will, these questions have no authoritative answer, and families are left to negotiate under emotionally charged circumstances.

There is also the separate but important question of superannuation. For many Australians, superannuation is their largest single asset. In 2026, the average Australian worker in their 40s holds tens of thousands of dollars in super, and some hold considerably more. Superannuation is not automatically covered by your Will — it is governed by the rules of your superannuation fund and the nominations you have made. A binding death benefit nomination directs the trustee to pay your superannuation death benefit to specific people (your spouse, children, or legal personal representative). Without a valid binding nomination, the trustee exercises a discretion — and that discretion may not align with your wishes or your family's needs.

The cost of making a Will through an experienced solicitor is modest — far less than the potential cost in legal fees, family tension, and court applications that can arise from dying without one. Viewing a Will as an unaffordable luxury is a false economy.

Making a Will is not a once-in-a-lifetime task. Life changes, and your Will must change with it. There are certain life events that automatically affect the legal validity of your Will — and others that do not affect validity but mean your Will no longer reflects your intentions. Both are important to understand.

The most significant automatic event is marriage. Under section 17 of the Wills Act 1997 (Vic), a Will is automatically revoked upon marriage — unless the Will was made specifically in contemplation of that marriage. This means that a Will you made before your wedding is, in most cases, no longer valid after you marry. If you then die without making a new Will, you are treated as having died intestate. This surprises many people who believe their pre-marriage Will remains effective. It does not. If you are planning to marry, one of the items on your pre-wedding checklist should be making a new Will.

Divorce operates differently. Under the Wills Act 1997 (Vic), if you are divorced after making a Will, any gifts to your former spouse and any appointment of them as executor are treated as having lapsed — but the rest of your Will remains operative. This means your Will does not fail entirely, but it may no longer work as you intended. If your former spouse was your sole beneficiary and executor, your Will effectively becomes a Will with no operative provisions — which produces a similar result to having no Will at all.

Beyond these automatic legal events, you should review your Will whenever there is a significant change in your circumstances: the birth or adoption of a child; the death of a beneficiary or executor named in your Will; a major change in your assets (such as purchasing property, starting a business, or receiving a significant inheritance); or a change in your relationship with one of the people named in your Will. A Will that accurately reflected your wishes five years ago may no longer do so today. Andrew O'Bryan recommends reviewing your Will at least every three to five years, and promptly whenever a significant life event occurs.

Not every Will that exists is a valid and effective one. A Will that is poorly drafted, incorrectly witnessed, or ambiguously worded can be as problematic — and sometimes more so — than having no Will at all. Understanding the common pitfalls is important whether you are making a Will for the first time or reviewing an existing one.

Homemade and "kit" Wills are a particular source of problems. While the Wills Act 1997 (Vic) sets out formal requirements for a valid Will — including that it must be in writing, signed by the testator, and witnessed by two independent witnesses who are both present at the same time — the formal requirements are only the beginning. A Will that is formally valid can still fail to give effect to your wishes if it is drafted in a way that is ambiguous, incomplete, or inconsistent. Homemade Wills frequently contain clauses that are legally meaningless, provisions that conflict with each other, or gifts that cannot be given effect because the subject matter has changed.

Witnessing errors are among the most common defects in homemade Wills. Under Victorian law, a Will must be signed (or acknowledged) by the testator in the presence of at least two witnesses, both present at the same time. Witnesses must not be beneficiaries under the Will — a gift to a witness (or the spouse of a witness) may fail, even if the rest of the Will is valid. Witnesses who sign at different times, or who are not present when the testator signs, can render the entire Will invalid.

Failing to address all assets is another frequent omission. Many people make a Will that deals with some of their assets but overlooks others — a share in a family property, a superannuation death benefit, digital assets, or a beneficial interest in a trust. Assets not covered by the Will fall into a residue; if the residue is not adequately addressed, those assets may pass under the intestacy rules despite the existence of a Will.

Not updating after major life changes — as discussed above — means a Will can become stale and fail to reflect current circumstances. An outdated Will may name a deceased person as executor, leave assets to people whose circumstances have changed dramatically, or omit children who were born after it was made. The consequences can be complex and costly to resolve.

Andrew O'Bryan has been helping Victorian families with Wills and estate planning for more than 33 years. In that time, he has seen every kind of family structure, every kind of asset holding, and the full range of family dynamics that make estate planning both important and sometimes delicate. His approach is straightforward: listen carefully, ask the right questions, and draft a Will that clearly and effectively reflects what you actually want — not a generic document that may or may not work for your circumstances.

Andrew prepares Wills at clear, fair fees. He will take the time to understand your situation — your family, your assets, your intentions, and your concerns — and will advise you on questions you may not have thought to ask. Should you appoint a professional trustee or a family member as executor? Does your current superannuation nomination align with what your Will does? Do you have children with particular needs that warrant a more structured estate plan? Are there tax or duty implications in the way you are proposing to distribute your estate? These are the kinds of questions that a Will prepared by an experienced solicitor addresses; they are questions that a kit Will does not even raise.

Making your Will with Andrew is not a complicated or time-consuming process. In most cases, it can be completed in a single consultation and a follow-up signing appointment. Andrew's offices are located in Melbourne and Victoria, and telephone or video consultations are available for clients who prefer not to attend in person. The first step is a conversation — and that conversation can begin today.