When a Will Is Drafted but Not Signed: What a Recent WA Supreme Court Decision Means for Grieving Families
A 2026 Supreme Court of Western Australia decision shows that, in the right circumstances, a draft will that was never signed can still be admitted to probate. If your loved one died before signing their will, all may not be lost.
A common - and heartbreaking - situation
Families regularly come to us with the same painful story. A loved one knew exactly what they wanted to do with their estate. They saw a solicitor. A will was drafted. They read it, told the family they were happy with it, and arranged to come back and sign. Then, before that appointment could happen, they died.
The natural assumption is that, because the will was never signed, it is worthless and the law will treat the deceased as having died intestate. That assumption is often wrong.
What the Supreme Court decided
In a decision delivered on 2 June 2026 (Te Paa v Evans [2026] WASC 214), the Supreme Court of Western Australia granted probate of an unsigned draft will - a will that existed only as a PDF attachment on the deceased's locked iPhone.
The deceased, a man in his early thirties, had given clear instructions to a solicitor in January 2023. He wanted everything to go equally to his four brothers and his mother to act as executor. The solicitor emailed him the draft will in early February. He opened it, read it, told his mother, his stepfather and one of his brothers separately that he was happy with it, and made arrangements to come in and sign. A week later, he died unexpectedly.
The original PDF could not be retrieved. The iPhone was locked, the laptop's storage drive had gone missing, and a digital forensics expert was unable to recover the document. The deceased's father opposed the application and argued his son had died intestate - which would have given him a substantial share of a multi-million dollar estate.
The Court disagreed. Justice Whitby granted probate in solemn form of the solicitor's copy of the draft will, limited until the original is found.
Why the result matters
Section 32 of the Wills Act 1970 (WA) allows the Supreme Court to dispense with the formal requirements for signing a will where the Court is satisfied the deceased intended the document to operate as their will. Combined with the Court's long-standing power to admit a copy of a lost will to probate, this means an unsigned draft can - in the right circumstances - still carry legal effect.
The case confirms several practical points that matter to families:
- A digital document on a phone or laptop can qualify as a "will" for the purposes of the legislation.
- A solicitor's draft, never signed by the deceased, can be admitted to probate where the evidence shows the deceased had settled on its terms.
- The fact that the deceased intended to come back and sign a printed copy does not, on its own, prevent the draft from operating as the will.
- Where the original cannot be produced - including because it is locked inside an inaccessible device - the Court can grant probate of a copy.
What evidence makes the difference
These applications are won and lost on evidence. The Court has to be satisfied, on clear and convincing material, that:
- there is a document recording the deceased's testamentary intentions;
- the deceased had settled on those intentions and did not want further changes;
- the deceased intended that document to operate as their will; and
- if the original is missing, it has not been deliberately destroyed by the deceased.
In the recent decision, the evidence that tipped the balance was straightforward: the solicitor's file notes and draft, consistent affidavits from family members who had spoken with the deceased in the days before his death, and an independent digital forensics report explaining why the original could not be retrieved.
If you are in a similar situation, preserving evidence now matters. Do not delete emails or text messages. Keep notes of conversations you had with the deceased about their will. Do not factory-reset phones, laptops or tablets. Do not throw out paperwork from the deceased's solicitor.
How Biddulph & Turley can help
We act for executors, family members and beneficiaries across Western Australia in contested and uncontested probate matters, including:
- applications to admit informal, unsigned or lost wills under section 32 of the Wills Act 1970 (WA);
- applications for letters of administration where there is no valid will;
- disputes between family members about the validity or terms of a will; and
- family provision claims under the Family Provision Act 1972 (WA).
These matters can feel overwhelming, particularly while you are still grieving. Our role is to take the legal weight off your shoulders, work out quickly whether a section 32 application is realistic on the facts, and guide you through the process from beginning to end.
Talk to us
If a family member has died leaving a draft, unsigned or partially completed will - or no document at all that you can find - contact our office for a confidential, no-obligation discussion.
Biddulph & Turley
Level 3, Suite 6, Bowman Street, South Perth WA
Telephone: (08) 9398 5533
Email: enquiries@wafamilylaw.com.au
This article is general information only and does not constitute legal advice. Every estate is different and outcomes depend on the specific facts and evidence available.
