Wills That Are Unsigned or Unwitnessed

Wills that are made in Australia must conform to formal requirements under the laws of the state or territory in which they are made. Failure to comply with these formal requirements can lead to a will being found to be invalid. A will can also be found invalid because the testator did not have capacity at the time it was made or because another person subjected them to undue influence. However, a will that is unwitnessed or unsigned, may still be found to be valid by the court in some circumstances. This article examines what happens with wills that are unsigned or unwitnessed.

Why A Will Is Unwitnessed Or Unsigned

A person may leave their will unsigned or unwitnessed for a range of reasons. The testator may have died before completing their will. Alternately, they may have made their will without legal advice and they might have been unaware of the formal requirements for the document.

When a person leaves a will that is unsigned or unwitnessed, it raises questions as to whether they approved the will’s contents and intended it to be their last will or whether they were as yet unsure about its contents and considering making further changes.

Declaring An Irregular Will to be Valid

The Supreme Court has the power to declare that a will is valid even if it does not conform to the formal requirements of the jurisdiction where it was made. Australian Supreme Courts have declared wills valid in the following circumstances.

  • Where it was in an electronic form
  • Where it was in the form of a document created on an iPhone
  • Where only a photocopy could be found
  • Where the will was in the form of a videorecording
  • Where it contained unwitnessed handwritten amendments
  • Where the will was stored as an unsent text message

When Will The Supreme Court Recognise Wills That Are Unwitnessed Or Unsigned?

The Supreme Court will declare a will to be valid if there is a document by the deceased person that purports to state their will but fails to meet the formal requirements for a will if it is satisfied that there is evidence that the person intended the document to serve as their last will.

Risks Of Leaving Wills Unsigned Or Unwitnessed

If a person makes a will but leaves it unsigned or unwitnessed, there is a much higher chance that the document will be found to be invalid than if all the formal requirements were adhered to. 

The costs of obtaining an order from the Supreme Court that an informal will is nonetheless valid are considerable. For this reason, it is much safer for a testator to ensure that they have a will that complies with the formal requirements.

If a dispute arises as to a will’s validity, this can result in a complex and lengthy challenge, which can have high emotional and financial costs.

Seek Legal Advice

If a person has died and left a will that is unsigned or unwitnessed, legal advice should be sought as to whether it is likely to be upheld as a valid will by the court.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers. 

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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