Unsigned Will still valid – Statutory Will

Unsigned Will of dead Athena White; Parry v Smith

What do you do with an unsigned Will? The Will was never signed. However, the Chief Justice said the Will was still valid. Under  s.21(2)  Succession Act, an order authorising a statutory is only made while the Will maker is still alive.  Such an order was made by McMurdo J many years ago, but the Will was never lodged with the Registrar for signing.  Under s.26  Succession Act, a ‘Will’ under s.21 is sufficiently ‘signed’ if it is in writing and signed by the Registrar with the Court seal.  A Will made under s.21 is only signed by the Registrar if the person is still alive.  Section 26 is the same for each State across Australia. Up until this case we all thought that the ‘Will maker’ must be both alive when the order is made and at the time the Registrar signs the Will.

The Chief Justice was satisfied that s.21(3) gave the power to order that the unsigned Will be admitted to Probate. This is irrespective that it failed to have the Register’s signature. (I think this is a natural extension of the excellent judgment of Justce Lindsay in Estate of Scott; Re Application for Probate [2014] NSWSC 465.)

Is an Unsigned Will OK?

This remarkable decision shows that an unsigned Will was still accepted as a ‘Statutory Will, even though the form was not correct, in that the Registrar and Court seal were absent. It seems that the Courts are now treating Wills as commercial documents. In commercial documents, the Courts bend over backwards to try and breathe life and interpret a deficient commercial document. Is this now the era of any document, whether signed or not being admitted to Probate as you last Will and Testament?

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