As discussed in the Page ‘Is an Unsigned Will still Valid?’, an unsigned document will be considered a valid Will if it holds the testamentary wishes of the deceased and was intended to operate as a Will. Below are three cases which assess this concept and the evidence required to prove such intention. As you will see there needs to be clear evidence and supporting documentation that the informal document was intended to be considered a Will for probate to be granted.
Estate of Springfield (1991) 23 NSWLR 535
A note can be sufficient to prove intention…
The deceased left a handwritten, unsigned and undated Will. However, the Will was found together with the title to the house and a note ‘Sal…I have left the house to you in the Will’. ‘Sal’ was one of the people referred to in the unsigned ‘Will’.
Thus, it was found that the Title and note together were enough evidence to suggest that the deceased intended the draft ‘Will’ to be their final Will. This was mainly because the deceased had, in her own words labelled the document left as her Will and cemented a testamentary wish in the document.
Mahlo v Hehir  QSC 243
A previous validated Will makes it extremely difficult to prove intention of an informal document to stand as the final Will…
The deceased had left an electronic document on her home computer. It had not been printed or signed.
Evidence was given that she knew the appropriate procedure as she had made a formal Will through a solicitor only months prior to the electronic document.
As a result, it was held that the electronic unsigned document was not a valid Will, as the deceased knew the procedure of what would constitute a valid Will and thus it could not be proven that this document was intended to operate as a Will and revoke her previous formal one.
Robinson v Jones  VSC 222
Bringing the two concepts together…
The deceased made a signed and formalised Will in 2012. The deceased then had a relationship breakdown and instructed his lawyer to remove his former partner from his Will and make some further adjustments The solicitor did as asked and sent the Will back to the deceased as a draft to arrange a signing. However, the deceased died by suicide before the Will was signed.
The Executors of the informal Will alleged that the deceased verbally approved the Will stating that ‘the draft was in the form he wanted’. However, similar to the case of Mahlo v Hehir, as the deceased had validly executed his 2012 Will, the Court found that he would have known that the Will had to be signed and witnessed to be valid. Further, distinguished from the case of the Estate of Springfield there was no supporting written evidence that this draft was intended to be his last Will, as the deceased’s suicide note made no reference to the informal Will or any changes to the 2012 Will.
The take away?
The court is reluctant to grant probate of an informal Will, especially when the deceased has previously made a formalised Will. Further, unless there is some form of written intention which supports the idea that the informal document is to be considered the final Will, proving intention is extremely difficult. Nevertheless, if have a Will whether formal or informal that you would like to dispute, defend or challenge please do not hesitate to contact the team at Hentys Lawyers and we will see what we can do for you!