Informal Wills & Unsigned Documents: When Are They Valid?

Introduction

For a will to be legally binding in New South Wales, it must meet the strict formal requirements outlined in the Succession Act 2006 (NSW), such as being in writing and correctly signed and witnessed. However, the law recognises that documents that do not meet these standards, known as informal wills, may still be considered valid under certain circumstances, leading to complex legal questions about the deceased’s final wishes.

This guide explains the legal principles that determine if an informal document can be accepted by a court as a valid will. Given the significant risks of uncertainty, family disputes, and costly legal proceedings associated with informal wills, consulting an experienced wills and estates lawyer is essential to ensure your testamentary intentions are legally protected and properly documented.

Requirements for Making Your Valid Will in NSW

The Necessity of Writing & Signatures

For a will to be considered valid in New South Wales, it must be in writing. This document can be either typed or handwritten, but it must be a physical record of the will-maker’s intentions.

According to Section 6 of the Succession Act 2006 (NSW), the will must also be signed with the clear intention of executing it. The signature must be from the will-maker, known as the testator. However, the law allows for another person to sign the will on the will-maker’s behalf, provided it is done in their presence and at their direction.

This provision is useful if the will-maker is physically unable to sign. Given the complexities of a signature by direction, it is highly advisable to consult a lawyer to ensure:

• The process is completed correctly
• The will remains valid

Witnessing Protocols for Validity

The signing of a will must be correctly witnessed to be legally binding. The will-maker’s signature must be made or acknowledged in the presence of two or more witnesses, who are all present at the same time.

Following this, at least two of these witnesses must sign the will in the presence of the will-maker. While it is not strictly required for the witnesses to sign in each other’s presence, it is considered best practice for the will-maker and witnesses to sign together.

It is important to note that:

• A beneficiary of the will should not act as a witness, as this can result in them losing their entitlement under the document
• A minor error in the witnessing process could render the will invalid

Therefore, guidance from an experienced lawyer is essential to ensure all legal formalities are met.

The Legal Status of Informal Documents

Defining a Document Under the Interpretation Act

For an informal will to be considered by the court, it must first qualify as a “document.” The term is broadly defined under Section 21 of the Interpretation Act 1987 (NSW) to encompass any record of information. This expansive definition moves beyond traditional paper and ink, recognising the various ways people record their wishes in the modern world.

The definition includes anything with writing, marks, figures, or symbols that have meaning. It also covers any medium from which sounds, images, or writings can be reproduced.

As a result, courts have accepted a wide range of formats as potential informal wills, such as:

• A file saved on a computer hard drive
• An unsent text message on a mobile phone
• A document created and stored on an iPhone
• A video or audio recording
• Handwritten notes in a diary or on an envelope

The Court’s Power to Dispense with Formalities

While a formal will must meet strict requirements, Section 8 of the Succession Act 2006 (NSW) gives the Supreme Court the power to dispense with these formalities. This provision allows the court to declare an informal document as a valid will under specific circumstances.

For the court to accept an informal will, it must be satisfied that:

• The document purports to state the deceased’s testamentary intentions
• The deceased intended for that specific document to operate as their will

The court can examine various forms of evidence to determine the deceased’s intent, including statements they made and the circumstances surrounding the document’s creation.

Proving these elements can be a complex process, often requiring a formal application and court hearing. Engaging a wills and estates lawyer is crucial to ensure your wishes are legally protected and to avoid the significant costs and family disputes that can arise from an informal will.

Case Study on Love Letters as Informal Wills

Details of the Lewis v Watson Case

The legal status of highly personal documents was examined in the case of Lewis v Watson [2025] QSC 35. In this case, the court was asked to consider whether a love letter written by a man to a woman could be treated as a valid informal will.

A key issue was whether this letter could legally override a previous, formal will that was already in place.

Why the Court Rejected the Letter

The court ultimately decided that the love letter could not be regarded as an informal will because it did not demonstrate the necessary testamentary intent. The language used was considered aspirational and emotional rather than a binding declaration of the deceased’s wishes for his property.

The court’s decision was based on its interpretation of several key phrases, including:

Phrase from the Letter	Court’s Interpretation
“…to accumulate as much wealth as I can to one day give to you and your son”	This was viewed as a future goal or aspiration, not a present and binding intention to dispose of property.
“If I were to die tomorrow then you and your little boy would inherit almost half a million dollars”	This was interpreted as a suggestion that a formal will in their favour might already exist, rather than the letter itself acting as the will.
“But I want you to have it…So please just accept it”	This was seen as the deceased imploring the recipient to accept a gift, not as a formal expression of a testamentary wish.

In its conclusion, the court found that the document’s character was that of a love letter, not a legal instrument.

This case illustrates the complexities of proving an informal document is a valid will and highlights why seeking advice from a wills and estates lawyer is essential to ensure your intentions are legally protected.

Digital & Other Forms of Informal Wills

Unsent Text Messages & Emails

In an increasingly digital world, courts have recognised that electronic communications can sometimes serve as a valid informal will. Cases have emerged where unsent text messages were accepted because they clearly reflected the deceased’s final wishes, even if they were never transmitted.

When determining whether a message qualifies as a will, the court will examine the context, which may include:

• Previous statements made by the deceased
• The nature of their relationships

Similarly, an email sent to a friend or family member outlining testamentary wishes has been accepted as a valid informal will. For example, in the case of Yazbek v Yazbek [2012] NSWSC 594, an email was considered a valid testamentary document because it was found to reflect the testator’s genuine intentions, despite its informal tone and lack of a signature.

Proving such intent can be complex, so guidance from a wills and estates lawyer is invaluable.

Computer Files & Electronic Documents

The legal definition of a “document” is broad enough to include various forms of electronic records. Under the Interpretation Act 1987 (NSW), a document can be any record of information, which allows courts to consider modern formats as potential informal wills.

Courts have admitted several types of electronic files to probate as a valid informal will, including:

• A file saved on a computer hard drive
• A document created and stored on an iPhone
• A video or audio recording

For any of these documents to be considered a valid will, the court must be satisfied that the deceased intended for that specific electronic file to operate as their final will.

Handwritten Notes & Diaries

Handwritten documents that do not meet formal requirements can also be accepted as a valid informal will. These can range from hastily scribbled notes to more detailed entries in a personal diary.

For instance, a note written by a patient in a hospital or a message on an envelope could potentially be recognised by the court. In the case of Borthwick v Mitchell [2017] NSWSC 1145, a handwritten and unsigned note in the deceased’s diary was deemed a valid expression of their intentions.

The court considered testimonies from family members and other evidence to reach its decision. While such documents can be upheld, relying on them creates uncertainty, reinforcing the importance of having a formal will prepared by an experienced lawyer to ensure your wishes are protected.

Proving Testamentary Intention in Court

Distinguishing Wishes from Binding Intentions

For an informal document to be accepted as a valid will, it must clearly state the deceased’s testamentary intentions—meaning their wishes for the disposition of property after death. The court must be satisfied that the document was intended to be the final, operative will, rather than merely a draft or a statement of future plans.

A document that only expresses aspirational goals will likely not be considered a valid informal will. For example, in the case of Lewis v Watson [2025] QSC 35, a love letter containing phrases about accumulating wealth to one day give to a loved one was rejected. The court found this language to be a future goal, not a binding declaration of testamentary intent.

Ultimately, the key question is not whether the document reflects the deceased’s wishes, but whether they intended that specific document to function as their will.

Evidence Used to Determine Intention

Proving that the deceased intended a document to be their final will can be a complex process, as the person whose intentions are in question is no longer able to testify. As a result, the court examines various forms of evidence to make its determination.

To understand the deceased’s true intentions for an informal will, the court may consider:

• Any evidence related to how the document was created and executed.
• Statements the deceased made to others about their testamentary wishes.
• The circumstances surrounding the creation of the document.

Given the difficulty in proving testamentary intent for informal wills, seeking guidance from an experienced wills and estates lawyer is essential. This ensures your wishes are legally protected and helps avoid potential disputes.

Risks Associated with Informal Wills for Your Estate

Uncertainty & Family Disputes

Relying on an informal will creates significant uncertainty for your estate. There is no guarantee that a court will accept the document as a valid expression of your final wishes. This lack of assurance can lead to ambiguity and stressful legal battles among loved ones.

If the informal will is rejected, your assets may be distributed according to the laws of intestacy, which might not reflect your actual intentions. This ambiguity can cause considerable distress for family members and may lead to a will dispute over what you truly wanted for your estate.

Increased Costs & Delays

Proving that an informal document should be accepted as a valid will requires a formal application to the court. This process is often:

• Far more complicated than administering a standard, formal will
• Time-consuming and expensive

The need for a court hearing and the presentation of evidence can result in significant delays and legal costs for contesting a will, which are paid from the estate. These expenses can diminish the value of the assets you intended to leave to your beneficiaries.

Consulting a wills and estates lawyer to prepare a formal will is the most effective way to avoid these risks and ensure your wishes are carried out efficiently.

The Importance of Consulting a Wills & Estates Lawyer

Ensuring Compliance with Formal Requirements

Engaging a wills and estates lawyer is the most effective way to ensure your will is legally valid. A lawyer will guide you through the process, making certain that your document meets all the statutory requirements for a formal will, such as being correctly signed and witnessed.

A minor error during the execution of your will could lead to it being considered invalid. To avoid these pitfalls, professional guidance provides:

• Assurance that your estate planning documents can be legally relied upon
• Confidence that your wishes will be carried out as intended

Minimising Litigation Risks

A professionally drafted will significantly reduces the likelihood of your estate facing legal challenges and is a key strategy for preventing someone contesting a will. Informal wills often create ambiguity, which can lead to stressful and costly disputes among family members over the validity of the document and your true intentions.

By preparing a formal will with an experienced lawyer, you can:

• Minimise the risk of estate litigation and the associated delays and expenses
• Ensure your assets are distributed according to your wishes without diminishing the value of your estate through unnecessary court proceedings

Conclusion

While the law provides a pathway for an informal document to be accepted as a valid will, relying on this exception creates significant uncertainty and can lead to costly family disputes. Ensuring your will meets all formal requirements is the most reliable way to guarantee your final wishes are legally protected and carried out as intended.

To avoid the risks and complexities associated with informal wills, contact our experienced wills and estates lawyers at PBL Law Group for trusted expertise. We can help you prepare a valid will that secures your legacy and provides peace of mind for you and your loved ones.

Frequently Asked Questions