Court decision

What happens to an unsigned will upon the will-maker’s death?

By Greg Cox / 04 May 2016
4 min.

Supreme Court of Queensland confirms that, in most cases, it will be invalid.

If a draft will has not been signed prior to a will-maker’s death, then certain persons may make an application to the Supreme Court of Queensland pursuant to section 18 of the Succession Act 1981 (Qld) (the Act) asking the Court to make a grant of administration in relation to the unsigned will.  If the Court accepts the application and makes the grant, the unsigned document will be treated as the deceased’s will for the purposes of administering his or her estate. 

However, a recent decision of the Supreme Court, Smith v Christianson & others, which was heard by Justice Jackson on 20 April 2016, has made it clear that only in limited circumstances will an unsigned will receive a grant of administration in accordance with section 18 of the Act.

In Smith v Christianson & others, on a Friday afternoon, Mr Williams gave verbal instructions to his lawyer about a new will he wished to make.  The lawyer recorded Mr Williams’ instructions on a copy of his current will and on an instruction sheet.  The lawyer read the instructions back to Mr Williams, and then Mr Williams read the lawyer’s record of his instructions himself and agreed that the lawyer’s record of his instructions was accurate.  Mr Williams then made an appointment with the lawyer to sign the new will on the following Monday.  The lawyer prepared the new will after returning to her office on the Friday afternoon, however, Mr Williams died over the weekend prior to signing his new will.

The executor of the unsigned will made an application to the Supreme Court under section 18 of the Act requesting that letters of administration with the unsigned will be granted to her, even though it did not meet the formal requirements of a valid will.  HopgoodGanim Lawyers acted for a beneficiary under Mr Williams’ earlier, correctly signed will.

The application was dismissed on the basis that the unsigned will did not satisfy the criteria of section 18 of the Act because Mr Williams did not review and accept the contents of the unsigned will prior to his death.  Justice Jackson found that it was not enough that Mr Williams had confirmed that the lawyer had recorded his instructions accurately.  As Mr Williams had not seen the unsigned will before he died, it could not be determined if Mr Williams was satisfied that the will as prepared accurately reflected his instructions.  This is notwithstanding that the will as prepared may, in fact, have reflected his instructions.  The crucial issue was that the Court could not be satisfied that Mr Williams intended the unsigned will to be his will.

The Court held that the facts of the case were not analogous to previous cases where an application under section 18 of the Act had been successful.  For example, in Mitchell v Mitchell [2010] WASC 174 the will-maker reviewed the draft will and said that he intended to sign it.  The will-maker first took a shower, and died during the shower.  Because that will-maker had agreed to sign the draft will before his death, the Court in that case granted administration in respect of the draft will.

As a result of the application in Smith v Christianson & others being dismissed, the deceased’s estate will be administered in accordance with his earlier will. 

Given the strict requirements of section 18 of the Act, it may be that any unsigned will in existence at the time of your death will not be granted administration by the Court and will therefore not govern the administration of your estate, such as in Smith v Christianson & others.  To avoid the possibility that you have an unsigned will in existence at the time of your death, we recommend making the finalisation of your estate plan a priority, and that in urgent circumstances, whether due to ill health or otherwise, consideration be given to signing an informal will with the intention that the informal document constitute your will unless and until replaced by a formal will.  However, it is important to keep in mind that the process of having the Court determine the validity of an informal will comes at a very considerable cost.

For advice in relation to your estate planning, please contact HopgoodGanim Lawyers' Estate and Succession team.  


04 May 2016
Key Contacts
Greg Cox
Special Counsel
Greg is one of the leaders of HopgoodGanim’s Estates and Succession team and offers more than 30 years’ experience in estate planning, administration and litigation.

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