Unwitnessed Document Admitted to Probate

John Flanagan died on 18 February 2020. In a draw of John’s desk, a sealed envelope was found addressed in his handwriting with the word ‘WILL’ .  The envelope contained a signed handwritten document dated ’16 Feb 2019’ entitled ‘Last Will and Testament’ (‘the document’).

The document dated ‘16th Feburary [sic] 2020’ on the final page and was not witnessed. The document appointed Edwena Mitchell (the plaintiff) as sole executor of the deceased’s estate.   

Informal Will

Notwithstanding the form and title of the document, and that it was enclosed in a sealed addressed envelope, it does not comply with s 7(1) of the Wills Act 1997 (Vic) (‘the Act’). The plaintiff sought a grant of probate of the document under s 9 of the Act  

Admission to probate of an Informal Will

Section 9 of the Act provides that a Court may admit to probate a will that has not been executed in conformity with s 7 of the Act if:

(a)        there is a document; that

(b)       records the testamentary intentions of the deceased; and

(c)        the deceased must have intended the document to be his or her will. 

Additionally, the Court must be satisfied that the testator demonstrated an intention without reservation, by some word or act that, the document would be legally operative to dispose of their property upon their death.

However, if the deceased lacked testamentary capacity, did not know, and approve of the document, or was unduly influenced, such that his or her will was overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. 

The proceedings

The Court accepted that John is not known to have had a previous will. The document was in John’s handwriting, was not marked ‘draft’ and was sealed in an envelope addressed with the word ‘WILL’. No influence was exerted on the deceased in connection with the making of the document. 

Importantly the document is expressed in language intended to be testamentary and John did not suffer from any medical condition that affected his testamentary capacity.

John’s doctor submitted that at his last examination the deceased’s testamentary capacity was not affected and, would not have been impaired by – ischaemic heart disease- the medical condition which caused his death.

Additionally, following the plaintiff notification none of the beneficiaries who would take on an intestacy sought to be added as a defendant to the proceeding. Similarly, the beneficiaries if the document be effective provided their consent to the plaintiff’s application.

The Decision

The Court was satisfied that the deceased intended that the document be his will and ordered that it be admitted to probate. 

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