Informal wills in Victoria

A will in Victoria is ordinarily made in writing, signed by the will-maker (or by someone at their direction and in their presence), with the signature made or acknowledged in the presence of two witnesses who are both present at the same time and who sign in the will-maker's presence. The requirements are set out in the Wills Act 1997 (Vic).

Many documents fall short of these requirements. People write notes of their wishes, draft wills they never sign, record messages on their phones, sign in front of only one witness, or make handwritten changes to an existing will. Section 9 exists so that a failure of form does not automatically defeat a person's genuine testamentary intention.

Section 9 allows the Court, and in some cases the Registrar of Probates, to make a grant in relation to a document that does not comply with the usual formalities. The Court's unusual applications guidance explains that the Court or Registrar must be satisfied that the deceased intended the document to be their will.

The same power applies to informal alterations and, under the Act, to informal revocations. For an alteration made after a will was signed, the question is whether the deceased intended the alteration to have effect on their will.

Informal documents come in many forms. None is automatically accepted or excluded. The table below sets out the kinds of questions each tends to raise.

A document that records what someone was thinking of doing is different from a document they intended to operate as their will. Messages about future plans, such as a wish to see a lawyer to change a will, may point away from finality rather than towards it.

The Court's guidance states that the Probate Office cannot say in advance what evidence will be required, because it varies in each case. It describes the minimum matters affidavit evidence would typically address:

• how the document was created;
• how the deceased treated the document afterwards;
• whether the deceased had any conversations about the document;
• if the document is unsigned, the act of adoption and the date or range of dates on which the deceased adopted its contents;
• the deceased's testamentary capacity at the time the document was signed or adopted.

Capacity evidence is required in all section 9 applications. Depending on the circumstances, relevant evidence may come from the person who found the document, the recipient of a message, family members, friends, a treating doctor, or someone who helped prepare the document.

Preserving the evidence

Electronic documents can be lost or altered easily. Where an informal will may exist on a phone or computer, the device and data should be preserved, and nothing should be edited, forwarded or re-saved. Metadata such as creation and modification dates may be relevant. Original paper documents should be kept in the condition in which they were found.

The Court's guidance explains that, in some circumstances, all persons who would be affected by a decision under section 9 may consent to the Registrar of Probates exercising the Court's powers. If consent is not provided, the application must be considered by a judicial officer. The Court publishes a consent form for this purpose.

Where consents are relied on, they must be exhibited to an affidavit of the applicant. That affidavit must identify everyone who would be affected, including by reference to any previous wills or to whether the deceased would otherwise have died intestate. The eligibility conditions for Registrar determination are set by the Court's current guidance and should be checked for each estate.

Consent affects who decides the application and the procedure. It does not remove the requirement that the decision-maker be satisfied of the deceased's intention.

Admitting an informal document may change who receives the estate. The people affected are typically those who would take under an earlier formal will, or on intestacy if there is no earlier will, and those who would take under the informal document. Their positions may differ sharply, and it is common for some to support and others to oppose the application.

If the informal document is not admitted, the estate usually passes under the last valid formal will or, if none, under the intestacy rules. See what happens if there is no valid will.

An applicant is not obliged to apply under section 9 if there is not enough evidence, for example if nothing confirms that the deceased intended the document to be their will. The Court's guidance states that, in that case, the existence of the document should be declared in any other application, with an explanation of why a section 9 application is not being made.

For an informal alteration, the applicant may instead seek to prove the will as originally signed, exhibiting a copy of the will without the informal alteration, and explaining why no section 9 application is being made for the alteration.

Section 9 of the Wills Act 1997 (Vic) turns on whether the Court is satisfied that the deceased intended the document to be their will. That is a question of evidence. Organising the evidence early helps the applicant, the Court and anyone whose interests are affected.

Not every category will be relevant, and evidence may point in different directions. The Court weighs the evidence as a whole. A document is not automatically valid or automatically invalid because one category is strong or weak.

Where the document is a text message, email, video, note on a phone or file on a computer, the device and account may themselves be important evidence. Practical steps usually include keeping the device safe and charged, not deleting, forwarding or editing messages, taking screenshots only as a supplement to preserving the original, and recording who has handled the device. A forensic copy may be appropriate where authenticity or dating is likely to be contested.

Accessing someone else's accounts can raise legal and practical issues. Advice should be obtained before attempting to unlock devices or log in to accounts, particularly where others may dispute the document.

An application under section 9 affects anyone whose entitlement would change if the document were admitted, such as beneficiaries under an earlier will or people entitled on intestacy. The Court's guidance on complex applications and its section 9 consent form show that the views of affected people are relevant. Where all affected people consent, the application may be dealt with more simply; where anyone objects or cannot consent, such as a minor, the matter may need to go before a judicial officer.

Section 9 admission compared with proving a lost copy

Section 9 is about a document that does not meet the formal execution requirements. Proving a copy is different: it concerns a will that was properly executed but whose original cannot be found. The questions, evidence and presumptions differ. A copy of a formally executed will is dealt with in the missing original will guide; an informal document is dealt with under section 9. Some matters involve both, and the correct pathway should be identified before the application is prepared.

• Assuming a text message or note is automatically a valid will, or automatically worthless.
• Editing, forwarding or re-saving an electronic document before it is preserved.
• Applying for probate of an earlier will without disclosing a later informal document.
• Relying on a single person's recollection when other evidence could be obtained.
• Overlooking capacity evidence, which is required in every section 9 application.
• Distributing the estate while the status of an informal document is unresolved.

We can review an informal document and the surrounding circumstances, identify the people who may be affected, and explain the evidence the Court would likely expect to see. We can prepare the application and supporting affidavits, or explain why an application may not be appropriate. We do not predict whether a document will be admitted; that is for the Court or Registrar.

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