For a Will to be valid in Victoria it typically needs to comply with the formalities of the Wills Act 1997. This being:
- The Will maker must have attained the age of 18 years to make a valid Will (with a few exceptions)
- The Will, in writing must be signed by the Will maker or by some other person in the presence of and at the direction of the Will maker
- The signature must be made with the Will maker’s intention to make the Will
- The Will maker must sign the Will in the presence of two witnesses present at the same time
- The two witnesses must sign the Will in the presence of the Will maker (but not necessarily in the presence of each other)
…However, the Supreme Court may dispense with the requirement for execution of Wills according to these formalities in certain cases.
In Victoria, Section 9 of the Wills Act 1997 allows a document which has not been executed in the manner in which a Will is required to be executed (ie has not adhered to the aforementioned, one example of which being unsigned) to still be admitted to probate as the Will of the deceased, if the Court is satisfied that the person intended the document to be his or her Will.
Tests for admitting informal documents to probate
- There must be a ‘document’;
- This is defined as anything on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them; or
- Any disk, tape, soundtrack or other device in which sounds are emobodied and also film, negative or tape or other device in which visual images are embodied
- It must purport to record the testamentary wishes of the testator (eg: not gift during lifetime, or a variation of a mortgage or a contract); and
- Ie it must deal with a disposition of property in contemplation of death
- It must be intended, without anything more, to operate as a will (i.e not merely a draft, or simply a letter of instruction)
- The deceased’s wording can’t be mere wishes or requests
- To prove intention the Courts may admit direct statements by the deceased, evidence surrounding the execution of the document such as notes the deceased had written about the document, or notes of the solicitor who made the Will
Onus and Standard of Proof
The onus lies on the person propounding an informal document to prove that it is the Will of a capable testator. The court must be positively satisfied on the balance of probabilities that the deceased had testamentary capacity and the document, whether unsigned, a draft, a mere video etc is intended to be a Will.
See the blog on Informal Wills for case examples where unsigned Wills have still been granted probate. If you have any further questions, or there’s an informal document that you believe should be valid, please don’t hesitate to give the team at Hentys Lawyers a call.