19 Jan 2023A person is drafting a will but dies before it is signed. Is it legally valid? An unsigned will or an informal will does not comply with the requirements of a legal will.
When is an unsigned will considered valid?
Under law, a valid will must be in writing, on a material such as paper, signed by the testator, witnessed by other people and formally executed. A specific formal language is preferred.
But if there is an unsigned will and it can be established that it was the intention of the person to register it as their legal will before they died, then there are legal avenues that can be pursued to have it recognised as the person’s will.
An executor cannot finalise a deceased person’s estate without the Supreme Court granting probate. A valid will is required to be attached to the probate application. (For more information please see What is probate, and why do I need it?)
In the case of an unsigned will, a special application needs to be made to the Supreme Court to determine whether the unsigned will can be accepted as the valid will of the deceased. There are powers under the NSW Succession Act 2006 for the court to dispense with the necessity of a legal will, under what are called “dispensing provisions”.
How does the court decide if an unsigned will is valid?
The court examines the individual circumstances of each case, to assess whether it can be established that the directions in the unsigned will were the deceased’s intentions, and why they failed to sign the draft will.
There might be witnesses who can say what the deceased intended, or other documents that support the intentions expressed in the unsigned will.
Courts do try to do justice to the deceased and carry out their wishes, but it is best to have a lawyer to present your case to the judge as convincingly as possible.
Unsigned wills in the digital age
In some cases, courts have accepted digital recordings as valid wills. In 2016 the Queensland Supreme Court decided an unsent SMS message found on a deceased man’s mobile phone was a valid will. (Please see Can an unsent text message be a valid will? Which case won?)
It detailed who would get what when he died, concluding with his name, birthday, the date, bank account code and the words “My Will”. He didn’t send the text because he didn’t want anybody to stop him dying by suicide.
In my own work I have recently obtained a grant of probate in relation to a text message which was deemed to be the last will of the deceased person.
In 2012 the NSW Supreme Court allowed a Microsoft Word document found on the deceased’s laptop to be admitted to probate as that person’s last will. (Please see Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594.)
Law Professor Katherine Biber of the University of Technology Sydney said the digital age has made courts consider whether DVDs, digital videos, mobile phone notes, Word documents and encrypted computer files can count as valid wills or amendments. (Please see An unsent SMS, a message on a tractor, a poem: the courts say a valid will can take many forms, The Conversation, 13 February 2020.)
She cited a 1948 case in Canada where a farmer trapped under a tractor scratched on the fender: “In case I die in this mess I leave all to my wife”. He died and the message scratched on the fender was accepted as his will.
While this is certainly not a recommended way to write a will, it does demonstrate that legal arguments can be mounted in court to accept unorthodox recordings of the intentions of a deceased person for the distribution of assets as a legally recognised will.
However, it is best to have a will which is drawn up by a wills specialist, so that all the legal technicalities are properly addressed. Having such a will reduces the risk of a successful challenge after your death and ensures that your assets go wherever you intended.
