The High Court has recently declared an unsigned and unwitnessed Will as valid.

The Will-maker contacted his lawyer instructing a new Will to be drafted. The new Will was to name his only son as the executor and sole beneficiary of his estate.

The Will-maker met with his lawyer again a month later, confirming his instructions. A draft Will was sent out to the Will-maker a week later.

Before the Will-maker could sign the Will and have it witnessed he passed away. This meant that the Will was not valid – as it had not been signed or witnessed.

The son of the Will-maker applied to the High Court to have the draft Will declared his father’s final Will. The High Court accepted the application.

For a Will to be valid it must be in writing, signed by the Will-maker and witnessed by at least two other people. The Will must also be signed by the witnesses.

In this case, the new Will had not been signed by the Will-maker, nor had it been witnessed by two other people. However, the Court may determine a will to be valid, even if it isn’t signed or witnessed. In making this decision, the Court may consider:

  1. The document;
  2. Evidence on the signing and witnessing of the document;
  3. Evidence of the deceased person’s testamentary intentions; and
  4. Evidence of statements made by the deceased person.

The Will-maker had met with and instructed his lawyer to prepare the new Will. The Court decided that the only reason the Will-maker had not signed the new Will was because there had been such a short period of time between when he received it and when he passed away.

The Court decided it was unlikely that the Will-maker’s testamentary intentions had changed in that short period of time, and the Will-maker had clearly given instructions for the new Will.

The Court declared the new draft Will as a valid Will. 

It is important to get your Will right, so that your wishes are executed in the way that you want. If you are confused about the process of preparing a Will, it pays to seek advice from a professional with experience in the area. 

 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors