The High Court has declined a son’s application to declare an electronically drafted Will (with incorporated handwritten variations) as his mother’s valid Will.

The applicant’s mother died suddenly in 2021. Her official Will, which had been signed and witnessed, was created in 2005. Three drafted Wills were found on the mother’s computer after her passing.

The applicant argued that the 2016 draft and a hand-written document dated 2017, represented his mother’s true testamentary intention at the time of death.

The drafted Will was significantly different to the 2005 Will. In particular, it did not leave any of the mother’s estate to one of her sons. The applicant argued that this reflected the change in circumstances regarding the mother’s relationship with that son, and therefore reflected her true intentions.

The applicant also relied on a handwritten letter that was signed by the mother in 2017, which made further variations to the 2016 draft Will. It stated that the document was her “Last Will and Testament”.

The issue before the Court was whether the draft Will and the variation letter could be a valid Will.

A Will is a document that is signed by the will-maker and witnessed by at least two other parties. These rules also apply to any variation of a Will. The courts have powers to declare a Will as valid, despite not meeting these requirements, if it both looks like a Will and expresses the will-maker’s final testamentary intention.

To determine whether such a document is valid, the courts may look at:

  •     The document itself;
  •     Evidence on the signing and witnessing of the document;
  •     Evidence on the deceased person’s testamentary intentions, and
  •     Evidence of statements made by the deceased person.

The High Court found that neither the 2016 draft nor 2017 document could be declared valid, despite the fact that it was clear the original Will no longer represented the mother’s testamentary intention.

There were three main factors the Court found against declaring either of the documents as valid.

Firstly, there was a four year gap between when the documents were drafted and when the mother died. It was likely that her testamentary intention had changed during that time, and so neither the 2016 draft nor the 2017 document reflected her most recent intention.

There were also many opportunities to formally declare the draft before the mother died, but she had explicitly chosen to close her account with the law firm that drafted her original Will. The Court held that this implied she was uncertain about the documents and making them official.

Finally, the mother was clearly aware of the requirements of a valid Will, as she had experienced these when creating her Will in 2005. The letter stating that the draft was her “Last Will and Testament” was therefore irrelevant, as she had specifically chosen not to have either of the drafted Wills formally processed to meet legal requirements.

There are specific requirements which must be met when formalising a Will. If you are confused about these, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley and Hunter Flanagan-Connors