News & Insights

The Supreme Court of Victoria has made a rare decision, accepting a document that had been neither seen nor signed by a Will maker was the person’s valid final Will, following an application by Macpherson Kelley’s Wills and Estates team.

The case is one of only a handful of recent successful applications where the court has accepted an unsigned document as a person’s last Will.

While the courts have a remedial power to grant probate of a document that does not meet the formal requirements for a Will, the power has been exercised sparingly.

However the unique circumstances in the case of Bolgarow and Marchment v Sultanova were such that probate of the informal Will was granted.

On 5 September 2018 Justice Lyon found in favour of the executors of the estate of 91-year-old Nina Elzow. The executors argued Ms Elzow had intended for an updated Will to supersede earlier versions and stand as her last Will and Testament, despite failing to formally execute the document.

Ms Elzow had declined an opportunity to sign the Will because she wanted to wait until her long-time lawyer, who was planning to travel, was available. She died in the intervening period.

The effect of the updated Will was that her overseas relatives would each receive $180,000 from her estate and anything left over would go to a close family friend who was also her primary carer. The original Will had evenly split her estate among the relatives.

One of the relatives flew from Russia to object to the new Will, arguing it did not comply with the requirements of s7 of the Wills Act 1997 (Vic) (the Act), and was therefore invalid.

The Court exercised its power under s9 of the Act to admit the Will to probate notwithstanding. It found that, whilst there is a high threshold for departure from the formal requirements of the Act, there was sufficient evidence to suggest Ms Elzow had intended for the unexecuted document to be her final Will.

The existence of this intention was the crucial point of dispute between the parties.

Ms Elzow had never actually seen the Will, nor signed it, and although she was aware the document would need to be executed before it was valid, she had declined the offer of a visit from an associate of her absent lawyer to finalise the Will.

Justice Lyon acknowledged that the Court would normally decline to admit an unexecuted Will where the deceased had consciously decided not to sign the document when presented with opportunity.

However, following the judgement of Habersberger J in Fast [2013] VSC 18 [56]-[118], he noted that this is only one of the factors to be considered when weighing the circumstances of the such a case, and that it is not determinative on its own.

Justice Lyon reiterated case-law stating that the intention of the testator is a question of fact, and that the testator must have expressed without reservation or alteration that the document should have effect as his or her Will.

In this respect, the Court was satisfied, although never having seen the Will, it had been read to her via telephone, Ms Elzow had confirmed her satisfaction with the Will in three separate and detailed conversations, and had expressly stated she considered the document “settled”.

The Court noted that the case should not be seen as a relaxation of the formalities for Wills, restating that the greater the departure from the formalities as listed in s7 of the Act, the more difficult it will be to satisfy the Court that the deceased intended the Will to be final.

Any evidence suggesting such an intention will need to be evaluated “with great care”.

The case shows informal Wills may be able to be granted probate in exceptional circumstances.

For more information on Wills and probate, please contact our Wills and Estates team.