What is an Informal Will in NSW?
- Justeen Dormer
- Apr 7, 2021
- 7 min read
Updated: 2 days ago
Challenging a Will
An informal Will is a document that says what someone wanted to happen to their property after they died, but which was never signed and witnessed the way the law requires. A note in a diary. An unsigned letter. A message typed into a phone. A Will filled in online and never printed.
The Supreme Court of NSW can decide that a document like this is a valid Will anyway. The power to do it is in section 8 of the Succession Act 2006 (NSW).
If you are here because a document like this has turned up in your family, you are not dealing with a rare problem. The Court decides these cases every year, and it decides them both ways.
The short answer
A Will is normally valid only if it is in writing, signed, and witnessed by two people.
If it was not, the Court can still accept it as an informal Will.
The Court has to be satisfied of one thing. Did the person intend that document to be their Will, with nothing more to be done to it.
An informal Will can cancel an earlier Will that was signed properly.
Being left out of an informal Will is not the end of the matter. You may still be able to claim.
What the law normally requires
For a Will to be valid in the ordinary way, three things must happen.
The Will is in writing, and the person making it signs it. The law calls that person the testator.
Two or more witnesses are in the room at the same time when the testator signs, or when the testator confirms a signature already made.
At least two of those witnesses sign the Will while the testator watches.
Miss any one of those and the Will is not valid in the ordinary way. That is when section 8 matters.
What counts as a document
Most people assume a Will has to be on paper. For section 8, it does not. The law’s definition of a document is deliberately wide, and the Court has accepted all of these:
an unsigned Word document on a laptop
a note typed into the Notes app on an iPhone
a Will filled in on an online platform and paid for, but never signed
a video recording
entries written in a personal journal
a handwritten note on a hospital menu form
That last one is not a one-off. In 1994 the Court accepted a note the deceased had written on the back of a scrap of a hospital meal order and handed to a friend. In 2026, in Muhvich v Arena, it accepted a note written on a hospital food menu form at Nepean Hospital. The same kind of scrap of paper, 32 years apart, and the same result.
Untidy handwriting and spelling mistakes do not matter. In Muhvich the Court said the errors reflected the man’s spelling, not his intentions.
The one question that decides these cases
Whether the document is a document is usually easy. Whether it deals with property after death is usually easy too.
The case turns on a third question. Did the person intend that document to work as their Will straight away, without anything further being done to it?
Think of it as the difference between a letter you have finished and put in the post box, and one still sitting on your desk because you meant to change a line. Both letters say what you wanted to say. Only one of them was finished in your mind.
That is why two cases that look alike can end differently.
Accepted. In Kemp v Findlay a man took a draft Will his solicitor had prepared, changed it himself, and emailed it to his cousin saying it was his new Will and he had not yet had it signed. He died in a boating accident four years later, aged 50, leaving three young children. The Court accepted the emailed document as his Will. Saying “I have not signed it yet” did not defeat it.
Refused. In Re Lyons a man with terminal cancer asked his solicitor to prepare a new Will with a trust in it. He died before signing. The Court refused to accept the draft. Every page was stamped “Draft”, and the evidence showed he was waiting to sign a proper document after another discussion with his solicitor. He had not finished.
Accepted, on appeal. In Wheatley v Peek a man in his late seventies had a near-fatal diabetic emergency. The next day he typed a note into his iPhone, headed it “Last Will of Colin L Peek”, dated it, put his initials at the end and finished with the words “No one else gets a thing”. His estate was worth about $13.6 million. The judge who heard the case first said it was only instructions for his solicitor. Three judges of the Court of Appeal disagreed and accepted it as his Will.
The lesson in all three is the same. What the person meant at the time decides it, and that is proved by what they said and did, not by how neat the document looks.
Someone is using an informal Will to leave me out. What can I do?
This is the situation most people are in when they find this page. You have two separate options, and they work independently.
You can oppose the informal Will. You are entitled to be told about the application if your interests are affected, and that includes beneficiaries of an earlier Will and anyone who would inherit if there were no Will at all. You can put evidence before the Court about whether the person really intended that document to be their Will. You can also lodge a caveat, which is a formal notice that stops the Court making a grant without hearing from you first.
You can make a family provision claim. This is the part people miss. Even if the informal Will is accepted, a family provision claim asks the Court for a share of the estate on the basis that you have not been adequately provided for. It is a separate application, decided on different grounds.
Muhvich v Arena shows how that works in practice. The woman who brought the claim had been raised as the deceased’s daughter, though he had never married her mother and never adopted her. The handwritten hospital note left everything to someone else. She lost the fight over the informal Will. She then won $200,000 from the estate on her family provision claim.
There is a deadline, and it is short. A family provision claim must normally be made within 12 months of the death. The Court can extend that, but you should never rely on it. If you think you may have a claim, get advice early rather than waiting to see how the Will fight ends.
What it costs, and who pays
In estate disputes the legal costs are frequently paid out of the estate rather than out of your own pocket. That is usually the first thing people want to know, and it is often what makes a claim possible.
Three things to understand about it.
The Court decides, and it does not simply back the winner. Costs work differently in this area than in most litigation. Where the dispute happened because of something the person who died did or failed to do, such as leaving an unsigned document behind, the Court will often order that costs be paid from the estate. Where the circumstances reasonably called for the Will to be looked into, the Court may leave each side to bear their own costs.
It happens often, but it is not automatic. In the recent informal Will cases the successful party’s costs came out of the estate in Re Riman, Re Lyons and Dunne v Christie. In Dunne v Christie the losing party had his out of pocket expenses paid from the estate as well, because opposing the informal Will had been a reasonable thing to do. None of that is guaranteed. It is a discretion, and it depends on the facts.
Costs paid from the estate still come out of the inheritance. Every dollar spent on lawyers is a dollar that does not reach the family. That is the strongest argument for sorting a Will out properly while there is still time.
We will give you a clear estimate of costs and explain how they are likely to be paid before you commit to anything.
What to do now
If you have found a document that might be an informal Will
Keep the original exactly as it is. Do not write on it, mark it, staple it or tidy it up.
If it is on a phone, tablet or computer, stop using the device and do not let anyone else use it. Do not delete anything, and do not let a family member “clean it up”. In one recent case material was deleted from the deceased’s phone and the Court had to deal with the consequences.
Photograph or scan it, and note where you found it, when, and who else was present.
Write down anything the person said to you about it, and who else they spoke to. This kind of evidence decides these cases.
Do not tell other family members what you intend to do before you have advice.
If you think you have been unfairly left out
Note the date of death. The 12-month deadline runs from there.
Gather anything showing your relationship with the person and any financial support they gave you.
Get advice before the estate is distributed. It is much harder to fix afterwards.
If this has made you think about your own Will
Signing one properly takes minutes. Every case on this page exists because someone did not get around to it.
How we can help
Informal Will cases are decided on evidence about what someone intended, and that evidence is easiest to gather early. We can tell you quickly whether a document is likely to be accepted, whether you have grounds to oppose it, and whether a family provision claim is open to you. Everything you tell us is confidential.
Disclaimer
This article is general information about the law of New South Wales as at 18 August 2026. It is not legal advice, and reading it does not create a solicitor and client relationship with Dormer Stanhope. It does not take your circumstances into account, and the law in other States and Territories differs. The law also changes. If a person has died leaving a document that may be an informal Will, or if you are unsure whether your own Will was executed correctly, speak to a solicitor about your own position.
