Sometimes an unsigned will is left in situations where the willmaker, in consultation with lawyers, has been in the process of making a new will, but died before the requirements to make a valid legal document were completed.
Leaving such a testamentary document raises important questions. Did the deceased approve of the contents of what is a draft will, and so intended it to be their last will – but simply didn’t get around to executing it according to the legal formalities? Or were they unsure and wanted alterations? Can an unsigned will, that is an unexecuted will, or informal will, as lawyers often call them, even be admitted to probate by the Court? The Court’s dispensing powers are discretionary – it depends on the circumstances in each case.
Executors, as those responsible for managing and finalising the deceased person’s estate, need official evidence of their authority to deal with it. To obtain this official evidence application needs to be made to the Supreme Court for a legal document – a grant of probate. A valid will is required to be attached to the application.
An unsigned will or informal will does not comply with the legal requirements for a valid will. This means that special application needs to be made to the Court as to whether the document could be admitted to probate. The application is made under special provisions in succession legislation which gives the Court power to dispense with the formal requirements for signing a will.
Dispensing provisions under wills and succession legislation
These provisions are known a the ‘dispensing provisions‘ and most Australian states and territories wills and succession legislation have similar provisions giving the respective courts power to dispense with the legal requirements under statute to make a valid will.
- For example in New South Wales, section 8 of the Succession Act 2006 (NSW) sets out when the Court may dispense with the requirements for the execution, alteration and revocation of wills.
- In Queensland, it is section 18 of the Succession Act 1981 (QLD).
- In South Australia, the Court has similar powers under section 12 of the Wills Act 1936 (SA), and in the Northern Territory it is under section 10 of the Wills Act (NT).
Unsigned will or informal will – can it be admitted to probate? It depends.
Exercise of the Court’s power to dispense with the legal requirements for a valid will is discretionary, depending on the circumstances and facts of each case.
Unsigned will, informal will not admitted to probate
Recently the West Australian Supreme Court had to decide whether an unsigned will, an informal will, should be admitted to probate under the law. The law is section 32 of the Wills Act 1970 (WA) see below. In this case the Court refused the application, finding that the unsigned will did not intend to make a will in the terms of this particular document.
The deceased had met with her solicitor and accountant to discuss a new will and gave instructions. She subsequently became ill and was placed in a care facility but communicated with her solicitor. The solicitor prepared a will for execution and forwarded it to her with carefully set out requirements for execution. The deceased returned home.
The Court said the deceased used what seemed to be a series of excuses not to execute her will suggesting she was not settled in her intentions, when there had been opportunities to do so. The circumstances, the Court said, spoke of a person unwilling to commit herself to the terms of a particular will, that she had time and opportunity to do so, that from the evidence, it showed she had not settled on a particular testamentary intent.
In reviewing the relevant legal authorities the Court distilled and summarised three questions laid down by those precedent decisions on such circumstances as follows:
- Was there a document?
- Did the document purport to embody the testamentary wishes of the deceased/
- Did the evidence satisfy the court that, either at the time the document was brought in to being or at some later time, the deceased by some words or act, demonstrate the intention that the document should, without more on his or her part, operate as his or her will?
The Court found that in the circumstances of this case the first two requirements were satisfied. There was a document. Secondly this document purported to embody the testamentary intentions of the deceased.
However the third requirement was not satisfied because the Court concluded the evidence had not established that the deceased demonstrated an intention that the document in question was intended to be in effect their will.
Dispensing provisions under the law in Western Australia
In Western Australia, the Supreme Court may dispense with the formal requirements to make a valid will: section 32 of the Wills Act 1970 (WA). Section 32 states in part:
(1) In this section and section 33 — document means any record of information including —
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph, and includes any part of a document within the meaning given by this subsection.
(2) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes —
(a) a will of the person; or
(b) an alteration to a will of the person; or
(c) the revocation of a will of the person; or
(d) the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the person’s will, an alteration to the person’s will, the revocation of the person’s will or the revival of a will or part of a will of the person, as the case may be.
(3) In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
Sometimes life events can occur so that there is not enough time to make a proper valid will. If there is a valid will already and only a minor change is sought, a supplementary document called a codicil may be appropriate. If the situation is temporary, and once passed, it should not be forgotten to make a proper valid will in consultation with proper legal advice.
Complying with the legal requirements to make a valid will should always be a priority, where at all possible. Legal proceedings to resolve problems only serve to cause delay and deplete the estate from extra costs, anxiety and stress for loved ones.
Re Estate of Kent (Dec); Ex Parte Bonker  WASC 239
28 August 2017, updated 22 November 2020.
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