20/08/2025

Is this a Will, actually?

A formal Will is a written document, signed by the testator and by 2 witnesses in the presence of the testator. So, what happens if, after a person has died, you or a family member or friend find a document that looks like a Will, but it’s not signed? Or not witnessed? Does that mean the document is not a valid Will?

Before the Wills Act was amended to allow for informal Wills, if a document did not comply with the requirements of a formal Will, then it was invalid, and the person died intestate (without a Will). (See our separate insight on the rules that apply when a person dies intestate).

Not anymore…

Now, a written document which does not meet the requirements of a ‘formal Will’ may still be an ‘informal Will’ if the Court is satisfied that the person who created the document intended it to constitute their Will.

Interestingly, an informal Will can be a ‘document’ (as defined in s32(1) of the Wills Act) which doesn’t just mean a written document but includes ‘anything from which sounds images or writings can be reproduced without the aid of anything else’. This means that in WA now, a person may be able to create a video Will as an informal Will.

An executor or administrator can apply to the court for probate of an informal Will. Once probate is granted, the Will must be administered according to its terms in the same way a formal Will must be administered.

Is the ‘document’ meant to be a Will?

To be an informal Will, it must be clear that the document was intended to be a Will ‘without more’. That is, the document was intended to be their Will, even if it wasn’t printed, signed and witnessed. The Court can assess, using evidence such as evidence of a deceased person’s words or acts before they died, to decide whether a deceased person had adopted or authenticated the document in question such that it can operate, without more, as their Will.

By way of illustration, a deceased woman had given her solicitor instructions to draw up a Will for her. The solicitor drew up the Will in accordance with the instructions and gave the completed document to her to sign, but she didn’t sign it. She told people later that she had felt uncomfortable with the draft Will being read out to her in front of her nieces and nephews and so she delayed signing it. However, she had possession of the document for a month before she became ill, and she did not sign it prior to her death. The Court found that this woman’s ultimate failure to sign the document suggested that she was not settled in her testamentary intentions and had not committed herself to the terms of the document. The application for probate on the un-executed Will as an informal Will was refused.

Contrast this with a second, similar case. A man had instructed his lawyer to draft a Will in certain terms. He received the document the lawyer drafted and, although he hadn’t signed it yet, he discussed it with his family members and indicated that he intended to sign it. He collapsed and died before doing so. In this case, the document was admitted as an informal Will and probate was granted.

So, it is possible to have an informal Will but there is going to need to be evidence that the ‘document’ was intended by the deceased person to be their Will to persuade the court to issue a grant of probate.

Geoffrey Walker & Associates ABN 92 495 396 

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