In Victoria the Wills Act 1997 (Vic) provides the legal requirements for a valid Will. Under s7 of the Act, a Will must be in writing and signed by the testator in the presence of two or more witnesses simultaneously. The witnesses must also sign the Will in the presence of the testator.
If the document does not meet the requirements for a valid Will, s9 of the Act provides that if the Court is satisfied that the document expresses the testamentary intentions of the deceased, it can accept an informal Will for probate. Notably, the document must have been intended by the deceased to be their final Will.
The person seeking to propound an informal Will must establish the requisite elements on a balance of probabilities.
What constitutes a ‘document’?
Section 3 of the Act defines a ‘document’ as
any paper or material on which there is writing and if the remote execution procedure is used, includes a document in electronic form;
In the matter of the estate of Bruce William Standish (deceased) [2018] VSC 629, the testator left instructions for a new will on his mobile phone but died before being able to sign a written Will. The audio recording of the deceased’s instructions was classified as a ‘document’ under s9 of the Act.
Testamentary intentions?
For a document to express the deceased’s testamentary intentions, it must express what the deceased intended to do with their property upon their death.
Final Will?
The executor must prove that the deceased intended that there be no alteration or reservation concerning the document. The document must express the deceased’s concluded testamentary intentions rather than preliminary, tentative or incomplete expressions of their testamentary intentions.
Background
Michelle Wallace passed away on 18 January 2022 at the age of 50 due to a sudden stroke. Before her death, she signed a document on 22 March 2019 called “Joint Wills for Michelle Ann Wallace and David Raymond Wallace,” which appointed Scott Wilkinson, Christopher Johnson, and Robert Clements as executors (the plaintiffs in this case) and on 4 July 2022, they filed an originating motion to grant probate for the 2019 document.
This application became necessary due to the deceased’s failure to obtain the signatures of two attesting witnesses. Mr Wallace testified that the failure to do so was accidental.
The deceased was married twice, first in 1996 and then to Mr Wallace in 2011. At the time of her death, she worked as an office manager in an electrical business, which she and Mr Wallace ran together. Besides Mr Wallace, there are two adult children from her first marriage, Shaylynn Farrall and Tynan Farrall, and her two minor stepchildren, Hayden Wallace and Luke Wallace.
Shortly before departing on an overseas trip, Michelle and David Wallace wrote and signed a joint will without the assistance of a legal practitioner. There were no witnesses. It named executors and provided for gifts, distributions and testamentary trusts. After Michelle’s death, the executor propounded the 2019 document for probate on the basis that the Court dispense with the formalities for a will according to s9 of the Wills Act 1997
The Court was satisfied that the 2019 document satisfies the first two of the requirements in s 9 of the Act: it is a document (being comprised of three pages of handwritten information signed at the bottom of each page by the deceased and Mr Wallace), and it records the deceased’s testamentary intentions, as is evident from its description as a ‘Will’, its identification of executors, and the inclusion of dispositive clauses. (Re Wallace [2024] VSC 22 at [19])
Mr Wallace and the plaintiffs submitted evidence supporting the Courts conclusion regarding the 2019 document, taking into account the circumstances surrounding its making:
(a) The couple was travelling to Fiji for a wedding on the day they prepared the 2019 document. They did not have time to consult a solicitor before travelling. They were aware of some immediate risk, so they decided it was best to create a homemade will.
(b) The deceased and Mr Wallace prepared the 2019 document at their office before they left for the airport. The deceased initiated the writing process by completing the heading and specifying the years the children and stepchildren would reach age 25. Mr Wallace then transcribed what the deceased was saying, with some collaboration between the two.
(c) The presence of both the deceased and Mr Wallace was constant throughout the process of writing the 2019 document.
(d) After preparing the 2019 document, the deceased read it, signed it, and stamped it with one of her office stamps while Mr Wallace witnessed. Then, Mr Wallace signed the 2019 document in the presence of the deceased.
(e) Neither Mr Wallace nor the deceased considered obtaining witnesses.
(f) The 2019 document was stored in the “personal documents” tray at Mr Wallace and the deceased’s office, where they kept all their essential documents until the deceased’s death.
(g) While en route to the airport, the deceased called her brother, Mr Wilkinson, in Mr Wallace’s presence to inform him that they had “prepared a will,” he was an executor, and where the “will” was stored. Mr Wallace also called Mr Clements and had a similar discussion with him.
(h) Two months after returning from Fiji, the deceased and Mr Wallace informed Mr Johnson that he was appointed executor. They told him where the 2019 document was stored.
(i) After executing the 2019 document, the deceased and Mr Wallace discussed having wills prepared by a solicitor but never got around to doing so. They referred to the 2019 document as their “will” when discussing this matter.
However, the document did not comply with the formal requirements for a will’s execution under s7(1)(c) of the Wills Act 1997, which requires that a will must be made or acknowledged by the deceased in the presence of two or more witnesses. As a result, the plaintiffs are seeking an order under s9 of the Act to dispense with the formal requirements to admit the 2019 document to probate.
In Re Wallace [2024] VSC 22, the plaintiffs relied on several affidavits in support of their application, including David Wallace’s affidavits filed on 4 July 2022 and 15 November 2023, an affidavit of Dr Kachig Malyan filed on 5 August 2022, and affidavits executed by each of the plaintiffs filed on 4 July 2022. After the commencement of the proceeding, Mr Wallace found a document entitled “Last Will and Testament of Michelle Ann Wallace” on the deceased’s computer in early December 2022.
The decision
The Court accepted that there is no evidence that the deceased intended the document located by Mr Wallace in early December 2022 to have effect as a Will. It is undated, was not signed by the deceased, was not witnessed, and contains incomplete testamentary dispositions. It appears to be in a template or draft form, and it does not bear upon the plaintiff’s application for a grant of probate concerning the 2019 document.
In addition, the first page of the 2019 document has been altered by a single line drawn across half of the page, with the words’ superseded 24/1/2022′ written underneath the line. Mr Wallace deposed that, six days after the deceased’s death, on 24 January 2022, he made this alteration and wrote out a further document which he intended to be his own Will. Mr Wallace did not realise that he should not have written in the 2019 document. Still, he did so after the deceased’s funeral when he was ‘not in a good headspace or thinking clearly’.
The Court accepted Mr Wallace’s evidence regarding his post-death amendment to the 2019 document and disregarded it to consider the plaintiffs’ application.
Given the circumstances, the creation of the 2019 document shortly before the deceased was to depart on an overseas trip without consulting a solicitor and where the deceased had informed each of the executors of their appointment at the time of or shortly after the document’s execution, and where the deceased kept the document in a secure location, the deceased had intended the 2019 document to function as a will, even though it did not comply with the formal requirements of s 7(1)(c) of the Act.
The Court accepted that the deceased had full knowledge of and approved of the contents of the 2019 document and that she had intended it to be her will.
There are several other noteworthy features of this case. First, the document used abbreviations and initials and included assets not part of the deceased’s estate. As a result, when applying for probate, the executors undertook to apply for orders for construction and rectification of the document within 60 days of the grant or both.
The Court held that the discovery of the 2022 document had no bearing on considering the plaintiff’s application for a grant of probate concerning the 2019 document. Consequently, the Court considered the 2019 document an informal will, and the plaintiffs should receive a grant of probate.