What can be done about an unsigned will?

July 6, 2018 Madsen Law

WHAT CAN BE DONE ABOUT AN UNSIGNED WILL?

Most people know that for a Will to be valid it must be in writing and signed by the Testator in the presence of two witnesses who attest to signing the Will in the presence of the Testator.
What is less well known is that the Supreme Court has power to declare a Will valid even if that Will document is not properly signed or witnessed.

The Supreme Court will declare a document a valid Will if:-
1. There is a document by the deceased person;
2. That document fails to meet the signing requirements;
3. The document purports to state that it is the Will of the deceased; and
4. The Court is satisfied that some evidence exists that the deceased person intended that document to be their last Will. The Supreme Court has taken quite a liberal approach to this task.

The Court has declared a valid Will when dealing with:-
1. An electronic (not paper) document;
2. A photocopy of a Will (the original could not be found);
3. A document created on an iphone;
4. A DVD recording of a Will;
5. Unwitnessed handwritten amendments to a previous Will;
6. An unwitnessed handwritten Will; and
7. Even an unsent text message.

As you might imagine the legal costs of having to prove these types of Wills is considerable. The safest and wisest course of action is to have a Solicitor prepare the Will and ensure it is properly signed and put away for safekeeping. The cost saving by doing this is enormous.
Sometimes the application of the rules of intestacy (i.e. how an estate is divided if the deceased person does not leave a Will), are inflexible and rather unjust. Those who are particularly at risk can be children from a previous marriage, step-children, estranged spouses, or financial dependents.

If you have an unsigned Will, or something that may appear to be intended to be a Will, or an amendment to a Will, it may be worth letting us give a legal opinion, or a second opinion about the validity of that document.