What Happens if A Will is Unwitnessed or Unsigned?
A will that is made in Australia must conform to formal legal requirements of the state or territory in which it is made. Failure to comply with these formalities can lead to a will being declared invalid. A will can also be found to be invalid because the testator lacked capacity at the time it was made or because they were subjected to undue influence by another person. However, when a will is unwitnessed or unsigned, it may still be found to be valid by the Supreme Court in some circumstances. This article examines what happens when a will is unwitnessed or unsigned.
Why a will is unwitnessed or unsigned
A will may be left unsigned or unwitnessed for a range of reasons. The testator may have died while in the process of completing their will. Alternately, the deceased may have made their will without legal advice and may have been unaware of the formal requirements for the document.
When a will is left unwitnessed or unsigned, this raises questions as to whether the testator approved the contents and intended the document to be their last will or whether they were unsure about its contents and intended to make further changes.
Declaring an irregular will valid
The Supreme Court has the power to declare a will valid even when the will does not conform to the formal requirements for a will in the jurisdiction where it was made. Australian Supreme Courts have previously declared a will valid in the following circumstances.
- Where the will was in an electronic form
- Where the will was in the form of a document created on an iPhone
- Where only a photocopy of the will could be found
- Where the will was in the form of a videorecording
- Where the will contained unwitnessed handwritten amendments
- Where the will was in the form of an unsent text message
When will the Supreme Court recognise a will that is unwitnessed or unsigned?
The Supreme Court will declare that a will is valid if there is a document by the deceased person that purports to state their will but fails to meet the requirements if it is satisfied that there is evidence that the deceased intended the document to be their last will.
Risks of leaving a will unsigned or unwitnessed
If a person makes a will but leaves the will unsigned or unwitnessed, there is a much higher likelihood that the document will be found invalid than where all the formal requirements for a will are followed.
The costs involved in obtaining an order from the Supreme Court that a will that is unwitnessed or unsigned is nonetheless valid are considerable. For this reason, it is much safer to ensure you have a will that complies with the formal requirements.
If a dispute arises as to the validity of a will, this can result in a complex and lengthy challenge to the will, which can have high financial and emotional costs.
Seek legal advice
If a person has died and their will is unsigned or unwitnessed, it is advisable to seek legal advice as to whether the will is likely to be declared valid by the court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.