Can a family member interpret will instructions? What Victorian lawyers should do instead

Picture a common Footscray or Box Hill appointment. Mum is 78, speaks Vietnamese or Mandarin, and her eldest son has come along "to help with the English". He's also an executor and a beneficiary. It's quicker to let him translate. It's also exactly the set-up LPLC keeps warning about.

Why it's risky

LPLC's article When language is a barrier puts it plainly: it has seen instances of undue influence or fraud by family members or friends acting as interpreters. Separately, it warns that using a family member can create a risk of waiving privilege. The VLSB+C's guidance on working with clients says using a family member may not always be appropriate, especially if that family member is a child.

There's also the capacity problem. LPLC's position on testamentary capacity is that the interview should be in person, with the client alone, using open-ended questions that address the Banks v Goodfellow test. That's very hard to do when the person interpreting your open questions is the person who benefits from the answers. And in one claim LPLC describes, the matter settled largely because there were competing medical opinions and no contemporaneous notes of any capacity questioning.

A safer workflow

1. Book an independent interpreter. LPLC recommends NAATI or AUSIT credentialed interpreters. Phone and video interpreting make this realistic even for a short appointment.
2. Collect the facts before the appointment. Names, dates of birth, assets, how the home is held, super funds, existing nominations. These are factual and can be gathered in the client's own language, which leaves the interpreted appointment for the conversation that matters.
3. See the client alone. Thank the family for coming and ask them to wait outside. Agree this upfront so it doesn't feel like an accusation on the day. LPLC's elder-abuse checklist asks both whether you're seeing the client alone and whether an independent interpreter is needed.
4. Use open questions. "Tell me about your family" and "what do you own" rather than "you want to leave the house to David, yes?"
5. Document the interpretation. An interpreter affidavit or a verified file note: the interpreter's name and credential, the language, and confirmation the instructions were interpreted accurately.
6. Consider recording. In Siapantas [2023] VSC 125 the instruction interview was conducted in Greek and the recording was later translated with English subtitles. It's a good example of a recording helping a will survive a capacity challenge.

Where an in-language questionnaire helps, and where it doesn't

About a third of Victorians use a language other than English at home (the 2021 Census figure for English-only is 67.2%), with Mandarin, Vietnamese, Greek and Punjabi the most common. For those clients, a questionnaire in their own language is a genuine improvement for the factual groundwork. They can answer at home, take their time, and look up the super fund name instead of guessing.

It doesn't replace the independent conversation. If the son filled in the form on mum's behalf, that's useful information in itself, and a reason to slow down at the appointment, not speed up. A good intake system should make it obvious to the lawyer who completed the questionnaire and flag the answers that need a proper conversation: capacity concerns, a big change from a previous will, or a beneficiary who was "helping".