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Don’t let the benefits in your will fail!

Don’t let the benefits in your will fail!

November 21, 2025

Taya Foxman

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Published

21 November 2025

Category

Wills & Estates

Section 39 Wills Act 1997 (Vic) – the 30-day rule

Section 39 provides that if you make a bequest in your will and your beneficiary dies within 30 days of your death, the benefit fails (they do not receive it) as the beneficiary is deemed to have died before you, unless a contrary intention is stated in your Will.

Many wills state – “I give my property to X provided X survives me by 30 days” or a clause that states “Section 39(1) of the wills Act does not apply to this will”. It is important to understand the impact of this on your will.

These are statements of contrary intention and therefore the 30-day rule does not apply.

For example, John’s Will provides "I give my house to my sister, Jane absolutely".

There is no contrary intention, so here, if Jane dies within 15 days after John’s death the gift to her of the house fails and the property would go to whoever John then selected, or the property falls into the “residue” and goes to beneficiaries John may not have wanted to benefit.

If John’s will, however, stated “provided Jane survives me by 30 days” or “Section 39(1) does not apply to this will”, even if Jane died within 30 days of John, she still gets the benefit, and it would pass to her beneficiaries via her will.

Where it is a husband and wife, will and the wills are “mirrored”, there is no issue, as both parents would likely have given the estate to their children.

If there are children from a prior marriage, you may not want the contrary intention in the will, so that if your partner dies within 30 days, it does not go to your partner’s children. That way, your assets are still under your control and direction.

Wills and estate planning can be very complex, requiring specialist knowledge and advice so your hard-earned assets end up where you want them to go!

For more information,

Contact: Sanicki Lawyers – Wills & Estate Planning Team

Tel: 03 9510 9888

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