In NSW, a valid Will must be in writing, signed by the Will-maker, and witnessed by two people. However. As the RMB Wills and Estates Division explains, there can be exceptions.
Under certain circumstances an unsigned Will or other informal documents can still be accepted by the Court as a valid expression of a deceased person's wishes.
The Supreme Court has the power to dispense with the formal requirements for the execution of a Will. If a document (or part of a document) appears to state a person’s testamentary intentions, the Court can declare it valid, even if it was not signed or properly witnessed.
The Court must be satisfied that there is a document, that it purports to set out the testamentary intentions of the deceased, and that the deceased intended the document to form their Will.
Courts have accepted a range of unconventional materials as Wills, including a draft Will that was never signed; a text message left on an unsent phone draft; notes on a tractor’s dashboard; a typed but unsigned and unwitnessed document stored on a computer; and even a poem.
The key question is whether the deceased intended the document to be their final Will.
One striking example involved a man who left an unsent SMS on his phone outlining how he wanted his assets distributed. The Court accepted this as his valid Will because it clearly showed his final intentions.
In another case, a person drafted a Will using an online template but died before they could print or sign it. The Court ruled that the unsigned document was valid, considering the circumstances and evidence about the deceased’s intentions.
When deciding whether to validate an unsigned Will, the Court will look at the wording and tone of the document; whether it was a draft or final version; evidence from family, friends or lawyers about the deceased’s intentions; whether the deceased had indicated they considered the document to be their Will; and any steps the deceased had taken to formalise the document.
Simply writing a rough idea of wishes isn’t always enough. The particular document must have been intended to operate as a Will.
Although the Court can validate an unsigned Will, relying on this process can be risky, costly, and uncertain. A formal, properly executed Will drawn up with the help of a qualified professional reduces the chance of complications and disputes and ensures that a person’s wishes are clearly and legally recorded.
RMB Lawyers can assist in drafting and executing Wills—ranging from straightforward to complex—that are legally sound and built to withstand scrutiny in court. Your first step should be to contact our office to arrange a consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.