While Victorian law imposes strict formal requirements for making a valid Will, including rules around signing and witnessing, section 9 of the Wills Act 1997 (Vic) provides the Court with discretion to dispense with these formalities in certain circumstances. This flexibility is designed to ensure that genuine testamentary intentions are not defeated simply because a document fails to meet technical requirements, whether due to the surrounding circumstances or a lack of understanding of the legal process.
However, this discretion is not automatic: the Court must be satisfied, based on the available evidence, that the document reflects the deceased’s final intentions and meets specific criteria.
To admit an informal will to probate, it must be able to be established that:
- The deceased intended the document to be their will. This may be supported by evidence such as how and where the document was kept, why it was not formally executed, and any statements made by the deceased indicating they had made or intended to make a will.
- The deceased had testamentary capacity at the relevant time. This means they understood the nature and effect of making a will, had a general awareness of their assets, and could identify and weigh the claims of those with a natural claim on their estate.
- The document was authored or adopted by the deceased. This may include evidence that the deceased prepared or signed the document, or otherwise accepted it as their will through their conduct.
Recent Cases
- Re Norris; Lindsay v Howie [2025] VSC 85: An unsigned will prepared by the deceased’s solicitor on her instructions was accepted as valid. Following a separation from her husband, to whom she remained legally married, the deceased provided instructions to her solicitor for a new Will. Although the deceased arranged to meet with her solicitor to sign the Will, she passed away before she could do so. The deceased’s estranged husband argued that the deceased had died intestate, and therefore that he was entitled to her entire estate under the intestacy provisions.
In finding that the deceased intended the unsigned document (which she had not actually seen) to be her final Will, the Court relied on the evidence of the deceased’s lawyer that she had read the Will aloud to the deceased over the phone, the deceased had stated she was happy with the Will, and the lawyer had printed and bound the Will in anticipation of it being signed by the deceased.
- Re Wallace [2024] VSC 22 concerned a ‘joint’ Will made by the deceased and her husband, shortly before embarking on an overseas trip. On the way to the airport, the deceased called one of the named executors and told him they had made a will, that he was an executor, and where the Will was kept; the other executors were also notified before or after the couple returned from their trip. Neither testator turned their mind to obtaining witnesses when making the Will. The Court accepted the document as an informal Will and admitted it to probate.
- Re Estate of Hirschfeld [2023] VSC 562 involved an unsigned Will and an Estate that would have otherwise followed rules of intestacy law, had the court not accepted that there was an informal will. In this case, the intentions of the deceased were apparent and non-contentious, as she had advised her executor and daughter of her intentions. The court accepted that the Will would have been signed, had the deceased not passed way prior to her signing appointment due to her deteriorating health.
- Re Kalenyouk [2024] VSC 390 involved a handwritten document titled ‘Will’ prepared by the deceased four days before his death. Although the deceased had signed the Will before only one witness, the Court accepted it to be an informal Will as there was compelling evidence to confirm the deceased’s intentions despite his critical health condition. This included that he titled the document ‘Will’, it revoked previous wills, he expressed his intentions to write a Will to his son-in law, and he had requested legal advice on requirements for submitting an informal Will.
- In contrast, in Re Larcombe [2022] VSC 741 the Court dismissed an application for probate of one-page handwritten document that misspelt the deceased’s first and last names, and which was signed before only one witness. The document in question was prepared by a family member of the deceased on the same day the deceased was admitted into hospital.
In making its decision, the Court was not satisfied the deceased understood the general nature and value of his estate or the effect of the document. Critically, there were significant concerns about the deceased’s testamentary capacity, and a lack of evidence that the informal Will reflected the deceased’s wishes.
Key takeaways
Whilst never a substitute for proper estate planning, the Court’s power under section 9 of the Wills Act 1997 (Vic) can be a valuable mechanism to ensure technical non-compliance with formalities for a Will does not inadvertently frustrate a person’s testamentary intentions.
How we can help
If you are dealing with a potential informal Will or considering your own estate planning, it’s important to seek legal advice as soon as possible. Our experienced wills and estates team would be happy to assist you.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.