Bowen Buchbinder Vilensky

What Happens if you Die Just Before Signing your Will?

This one (3)

By Daniel Yazdani, Solicitor at Bowen Buchbinder Vilensky Lawyers

18 November 2015

The recent WA decision of Re The Estate of Allan John Young [2015] WASC 409, which was handed down on 3 November 2015, deals with the interesting question of what happens if a person unexpectedly dies before signing his or her Will. Is the unsigned document valid? Can the unsigned document be admitted to Probate, thereby allowing the Executor to administer the Estate as per the Will?

Briefly, the facts of the case were that Allan Young (‘the deceased’) lived in Hopetoun, WA and had his Will prepared by lawyers in Perth. Just a few days before his unexpected death, he spoke with his accountant and said words to the effect: “I have read the documents and I am happy with it as long as you are happy.” The accountant replied that he had no problems with the Will. On 21 May 2014 – the day before he died – he spoke with one of his neighbours whom he would see daily. He told her that he had decided to sign his new will, saying: “I suppose I’m going to sign this will … I will get it finished.” The next day, he died.

Given that the deceased had not signed the Will, it did not satisfy one of the fundamental statutory requirements in the Wills Act 1970 (WA) – namely, the need for the deceased to sign the Will and have his signature witnessed by 2 people. Thus, the only way in which this unsigned Will could be admitted to Probate was if it satisfied the requirements of being an ‘Informal Will’ under s 32(2) of the Wills Act 1970 (WA). In order to be admitted as an Informal Will in WA, the Court must be satisfied that the deceased intended the document to constitute his last Will.

In the end, the Supreme Court was satisfied that the document in question was an Informal Will and ordered that the Informal Will be admitted to Probate.

This interesting case highlights a number of points, including:

  • A Will should be signed as soon as possible after it has been prepared and settled;
  • The importance of having a validly signed and current Will – this will minimise the costs arising from court proceedings to try and prove a document as an Informal Will;
  • Whilst Informal Wills can be admitted to Probate in some circumstances, there needs to be clear and cogent evidence that the draft Will or other documents reflect the deceased’s testamentary intentions; otherwise it is unlikely that such a document will be admitted to Probate. Therefore, in some instances, the failure to have a validly signed Will (even if it has been drafted) will result in an intestacy and the Estate being divided up according to the intestacy rules in the Administration Act 1903 (WA).

For more information on this subject or to discuss your Will and Estate Planning requirements, contact our Daniel Yazdani at dyazdani@bbvlegal.com.au.

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2 Responses to “What Happens if you Die Just Before Signing your Will?”

  1. Mina says:

    This is a well-written piece. It captures attention and discusses and important issue–very helpful, indeed.

  2. I’ve always wondered what would happen in a unique situation like this with a will. My father went through several drafts of his will in the hospital before he was satisfied enough to sign one and we were all worried we might get caught in this situation. Good to know that it can still work out ok as long as the court can be satisfied. Thanks for the information on such a unique case!

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