Informal Wills in Victoria

Answers to frequently asked questions about informal Wills in Victoria

It is not uncommon for family or a close friend of a deceased to find an informal signed document which purports to set out who gets his or her Estate.

If you are a beneficiary named in an informal Will, to get your entitlement the Court must determine it is valid.

What is an informal Will?

An informal Will is one that fails to comply with the validity requirements of Section 7 of the Wills Act 1997. Commonly it is a handwritten document purportedly signed by a deceased without the signatures of witnesses.

For a Will to be valid in Victoria it must be in writing signed by the Will maker in the presence of at least 2 witnesses who also sign it.  

Does the Court have the power to validate an informal Will in Victoria?

Section 9 of the Wills Act 1997 gives the Court power to dispense with signing and witnessing requirements if it is satisfied the document embodies a deceased’s Will intentions and was intended to be his or her Will.

What is the process for a Court to validate an informal Will?

For an informal Will to be valid, it needs to be probated by application to the Victorian Supreme Court.

The Court’s Registrar of Probates has power to probate an informal Will if all affected parties consent where the Estate value is less than $1,000,000.00. Affected parties are those named in any penultimate Will or if there is no Will those parties who would be beneficiaries under the intestacy rules.

What happens if not all affected parties consent to an informal Will?

If there is no consent, the informal Will must be referred by application to the Supreme Court Probate List for directions and validity determination.

The application would be served on each of the affected parties as potential contradictors.

What requirements need to be satisfied for the Court to probate an informal Will?

3 requirements must be satisfied.

• That there is a document expressing or recording the deceased’s Will making intentions.
• That the document embodies the deceased’s Will making intentions.
• That the document must have been intended to be the deceased’s Will.

The last 2 points overlap and are what the Court focuses on.

How does a Court determine whether an informal document was intended to be a Will?

Relevant questions of fact and matters include:

• Was the document drawn and signed by the deceased?
• Is the document in the deceased’s handwriting bearing his or her signature?
• How and when was the document drawn?
• Did the deceased have testamentary capacity at the time he or she drew and signed the document?
• Is the document rational on its face, having regard to the nature and extent of his or her assets and to whom he or she needed to consider as beneficiaries of his or her Estate?
• What did the deceased do with the document once drawn? Where was it left? Was it left with the deceased’s other important documents?
• Are there statements by the deceased before the preparation of the document which are consistent with it?
• What was the reason for the informality of the document?
• Did the deceased have knowledge of the formalities for making/signing a Will, or the need for 2 witnesses to witness him or her signing before he or she signed?

If I seek to validate the informal Will and fail, am I at risk of paying Court costs?

Subject to the Court being satisfied it was reasonable for you to make your probate application and seek to validate the informal Will, it is likely the costs of the application would be ordered to be paid out of the Estate.

It should be noted however that whilst it is reasonable for a person named as executor in an informal document to make enquiries relevant to its validity, there is no duty to make a probate application to seek to validate it.

Get advice on informal Wills now

Our expert informal Will lawyers can help you by:

• Providing you advice on whether the document is an informal Will.
• Assisting you to promptly assess whether the informal Will is likely valid relevant to your legal position.
• Representing you in any informal Will validity application.

Galbally & O’Bryan is one of Victoria’s leading Wills & Estate law firms. We offer a free first consultation over the phone. Partner Andrew O’Bryan and Senior Associate Carl Wilson are expert Wills lawyers.