Picture this: a man is dying in hospital and suddenly decides to change his will. A lawyer is called to attend the hospital to take instructions for the man’s will. The man, close to the end of his life, labouring to breathe, just barely able to summon enough energy to speak, gives his final will instructions.

The lawyer records the conversation on his dictaphone and writes down the instructions in a blank will form he brought with him. But the patient is too weak to sign the will form and lapses into a coma not long after giving his will instructions.

Can the instructions recorded on the lawyer’s dictaphone and the unsigned will form be admitted to probate as the man’s will?

For a will to be valid it must be:

• intended by the will-maker to be his last will, and
• signed by the will-maker in front of two independent witnesses.

Before 2006, if a will did not meet these requirements it could not usually be admitted to probate. However, the law has changed since then.

This article explores the elements required to successfully make an application to admit to probate a will that does not meet the usual formal requirements.

There are three elements about which the court must be satisfied to admit to probate a will that does not meet the usual formal requirements for a will.

There must be a ‘document’. This is broadly defined to include “any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced…” In Mellino v Wnuk the court admitted to probate a DVD left by the deceased containing his will instructions. In Re Yu the deceased left his will instructions on his iPhone.

The document must contain the testamentary intentions of the deceased person. The testator must have formed the final and conclusive intention that that particular document contained his/her last testamentary wishes.

The third element is the element to which the courts have found necessary to devote most attention. The evidence must satisfy the court that the deceased intended the document to be his will.

The above elements were considered carefully by the Supreme Court of Victoria in Fast v Rockman. The following conclusions can be drawn from that case:

• the document must exist at the date of death,
• the evidence the court will consider is broad, encompassing:
  • the form of the document,
  • the contents of the document, and
  • the circumstances in which the document came into being,
• it must be demonstrated that the deceased by his/her words and/or actions intended that particular document to be his/her will,
• there is no hard and fast rule that the particular document propounded must have been produced by, read to, or written by the testator. However, the courts are more ready to find the requisite intention where the document is written by, bears the signature of, or has some mark by the deceased indicating his intention to adopt the document as his own,
• it is relevant to enquire whether the testator was aware of the formalities required to make a valid will. The court drew a distinction between cases where this fact was an element in the court’s deliberations and those cases where the testator lacked the knowledge of formal requirements, observing that the testator’s awareness of the formalities to make a will may have a bearing on the court’s assessment of the testator’s intention. If the document does not meet the formal requirements of the testator and the testator was aware of them, to court is more reticent to find the document is the testator’s will, and
• there must a direct connection (a causal connection) between the testator’s testamentary intention and the creation of the document.

The document propounded must be supported by evidence that the testator (by his words or acts) had every intention, without equivocation, to adopt or authenticate the document prior to death. That is, that the testator intended the creation of the document “to be the legally operative act which disposes of the deceased’s property upon their death”.

The same statutory provision can be used to admit to probate a copy of an original will that has been lost. Provided the court is satisfied that the original will was merely mislaid and not destroyed by the will-maker for the purpose of revoking the will, the court will admit the copy will to probate.

Although the analysis of the dispensatory provision is interesting, these applications are expensive. The cost of the application is paid from the deceased’s estate and far exceeds the cost of seeing a lawyer to have a properly drafted and validly executed will.

How We Can Help

Our Wills & Estates Team is led by Russell Leneham, an Accredited Specialist in Succession Law (Wills and Estates) and the entire team consists of experienced wills and estates lawyers and paralegals.

Our team has the experience required to obtain the best possible outcome.

As one of our clients said “Invest in the best. Q&S“.

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Get the best representation. Contact Quinn & Scattini Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.