Getting your Will drafted can feel like the most daunting and important part of the estate planning process. You have to make an appointment, provide your lawyer with personal details about your life and assets, and then review a legal document to make sure everything is correct – making another appointment to sign the final document is often inconvenient and procrastinated.
However, dying with a drafted, unsigned Will can cause significant complications during the administration of your estate, and risks leaving your executors with avoidable financial and emotional stress.
Wills Act 1997 (Vic)
In Victoria, for a will to be executed correctly and be held as valid, it must comply with the requirements of the Wills Act 1997. It must:
- Be in writing and signed by the testator (the will maker), or by an authorised person in the testator’s presence and at their direction;
- Be signed with the intention that the testator is executing a final will;
- Be signed in the presence of at least two witnesses who are present at the same time; and
- Be signed by the witnesses in the testator’s presence.
Unsigned Wills
The Supreme Court of Victoria can choose to admit a document to probate even when it doesn’t comply with the above requirements, however this is an involved process and is time-consuming and expensive, sometimes resulting in the will not being admitted to probate. The court will only admit a non-compliant document if it is satisfied that the document submitted was absolutely intended to serve as the testator’s last will, which can be difficult to prove where there is no compliance with the formal requirements for a valid Will..
Where there is no signature on the Will, the court has indicated a strong reluctance to admit the same for probate, particularly where there is no proof that the will was approved by the testator.
Robinson v Jones is a 2015 case concerning one such will. The solicitor was provided with instruction to draft a Will, and subsequently forwarded the draft to their client for approval. They advised the client that once approved, an appointment would be made to arrange for the signing of the same, however unfortunately, this client passed before providing their approval and signing the final document. The unsigned document was refused by the court due to the lack of approval, which it held indicated that the deceased did not intend for the document to be their final will.
By contrast however, the 2019 matter of Sultanova v Bungalow resulted in the unsigned will being successfully admitted to probate, due to the availability of evidence highlighting the testator’s intention that unsigned will be her final Will. Whilst the documents were unsigned, evidence was available to show the testator held an informed understanding of the document and had made arrangements to finalise the same. The court was therefore satisfied that the testator’s intentions were clear.
Regardless of the result, both matters listed above required additional time in the Supreme Court and Court of Appeal to ensure the correct conclusion was reached, and the estates were handled appropriately. This would likely have resulted in both costly legal fees, and avoidable emotional stress for the family members involved, and could have been easily solved by signing the Wills in a timely manner once the drafts were provided.
The lesson: don’t ignore your draft will! Get in quick and get it signed to avoid the need for lengthy court proceedings in future.
Time to pull the pin on planning your estate? Contact nevileco@nevile.com.au today.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
