When a Will Is Drafted but Not Signed: What a Recent WA Supreme Court Decision Means for Grieving Families

A late change to a will, combined with declining health and a controlling individual — this pattern is more common than many families realise. For the last two years of her life, Patricia's mother lived with her younger brother, Neil. Their mother had dementia — diagnosed eighteen months before her death, progressive, and by the end significantly affecting her memory and judgment. Three months before she died, her will was changed. The family home in Cottesloe, previously to be divided equally among the three children, was redirected entirely to Neil. Patricia and her other sister had not been told about the change until probate was applied for. They wanted to know whether the will could be challenged. Two distinct grounds of challenge In Patricia's situation, there are potentially two separate grounds on which the will might be challenged. They are different in nature and in the evidence required to support them. 1. Lack of testamentary capacity A will-maker must have what the law calls 'testamentary capacity' at the time they execute a will. The legal test, which has been applied in Australian courts for well over a century, requires that the will-maker: Understands the nature and effect of making a will Understands the extent of the property being disposed of Understands the claims of those who might reasonably expect to benefit Is not suffering from any disorder of the mind that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties A diagnosis of dementia does not automatically establish a lack of capacity — the question is always whether capacity existed at the moment of execution. But progressive dementia, combined with a late change in a large estate and circumstances suggesting isolation, creates a serious case for investigation. Evidence that will be relevant includes: medical records from the relevant period, the file notes of the solicitor who prepared the will, the observations of family members and care workers, and, if available, a retrospective assessment from a geriatrician or neurologist. 2. Undue influence Undue influence is a separate and harder ground to establish. It is not enough to show that Neil had influence over his mother, or that he was the primary carer, or that the change favoured him. The court requires proof that the will-maker's independent judgment was overborne — that she was coerced, in the legal sense, into making a disposition she would not otherwise have made. Evidence of undue influence is rarely direct. It is built from circumstantial material: the degree of dependence and isolation, the timing and circumstances of the change, whether the will was prepared by an independent solicitor who took instructions in private, whether the will-maker was able to give coherent reasons for the change, and whether any explanation for the change makes sense given the family history. In Patricia's case, the relevant questions include: who contacted the solicitor to arrange the will change? Were Patricia and her sister excluded from that process? Did the solicitor who prepared the new will take steps to satisfy themselves as to capacity and the absence of influence? Were there any contemporaneous notes? What should Patricia do — and when? If there are genuine grounds to challenge a will on validity, the time to act is before probate is granted. Under section 63 of the Administration Act 1903 (WA), a caveat can be lodged with the Principal Registrar of the Supreme Court, preventing probate from issuing. This does not resolve the challenge — it preserves the status quo while the matter is investigated and, if necessary, litigated. Once probate has been granted, it becomes significantly more difficult to set it aside. The grant carries a presumption of regularity. It can be challenged, but the evidentiary burden is high and the process more complex. Time is therefore critical. If Patricia has concerns, she needs legal advice before the executor proceeds with the probate application. What is realistic? Challenges to wills on grounds of capacity or undue influence are not straightforward, and the strength of any challenge depends entirely on the quality of the evidence. Many such claims resolve by agreement — often because the executor and the benefiting party recognise the risk of an adverse finding and prefer certainty. Others proceed to hearing. What Patricia needs at this stage is a clear-eyed assessment of whether the evidence is there to support a challenge, what that challenge involves procedurally, and what the realistic range of outcomes is. That is what an initial consultation provides. If you have concerns about a will that has recently been made or changed, call Reg Biddulph on 08 9398 5533 . Do not wait.

Being named in a will does not guarantee what you receive. But it does give you rights. When Helen's mother died, the will was clear. Helen and her sister had been named as equal beneficiaries of an estate valued at just under $6 million. Their brother Robert — who had borrowed substantial sums from their mother over the years, none of it repaid — received nothing. Their mother had been explicit about why. Robert announced, at the funeral, that he intended to contest the will. Helen came to us with two questions: could he do it, and what could she do about it? Can he contest the will? Robert, as a child of the deceased, is an eligible person under the Family Provision Act 1972 (WA). He has the right to make an application. Having the right to apply is different from having a strong claim — but it means that Helen cannot simply dismiss the threat. The relevant question is whether the will makes adequate and proper provision for Robert's maintenance, support, and advancement in life. The court will look at Robert's financial position, his needs, the size of the estate, and all the circumstances of the relationship — including the loans. What can the beneficiaries do? Named beneficiaries under a will are not passive observers in FPA proceedings. They have a direct financial interest in the outcome, and in most cases they will want to participate actively — either by being joined as parties to the proceedings, or by providing evidence and instructions to the executor. As a beneficiary, Helen can: Provide evidence about the nature of the relationship between her brother and her mother Adduce evidence of the loans — amounts, circumstances, any written acknowledgments — which will be relevant both to Robert's 'need' and to the court's assessment of the deceased's conduct toward him Give evidence about her own financial circumstances and needs, which form part of the competing claims analysis Participate in any mediation with proper legal representation The loans: a significant factor The outstanding loans are potentially very significant. If Robert received substantial financial benefit from the deceased during her lifetime — and particularly if those benefits were not matched by equivalent provision to other family members — this will be taken into account by the court. It may substantially reduce, or in some cases extinguish, an FPA entitlement. The court looks at what has already been received, as well as what is being claimed. A child who received $400,000 in advances during the deceased's lifetime, against an estate of $6 million, is in a very different position from a child who received nothing. What about the cost? Defending an FPA claim involves legal costs. In most matters, costs are paid from the estate — which means that a successful defence reduces what that process has cost the beneficiaries, but the net position depends on the overall outcome. An early, reasonable settlement is almost always preferable to a full hearing, if the terms are acceptable. Helen and her sister needed to understand the realistic range of outcomes before deciding how hard to defend. That is exactly the kind of analysis we provide at an early stage. The outcome Many FPA matters that look alarming at the outset resolve at mediation. A realistic assessment of what Robert could expect from the court — given the loans, his financial position, and the strength of the competing claims — may well lead to a modest settlement that costs less than the alternative. Or, if the circumstances justify it, a firm defence. If you are a beneficiary facing a challenge to a will, call Reg Biddulph on 08 9398 5533 . We act for beneficiaries as well as claimants, and the initial consultation is obligation-free.

Being named executor is an honour. It also carries real legal responsibility. Margaret was named executor under her mother's will. The estate was substantial — a house in Nedlands worth approximately $2.8 million, a managed investment portfolio, and several term deposits — total value around $4.5 million. Her mother's instructions were clear: the estate was to pass to Margaret and her sister equally, with nothing left to her brother James, from whom her mother had been estranged for over a decade. Three months after probate was granted, a letter arrived from a firm of solicitors. James was making a claim under the Family Provision Act 1972 (WA). Margaret's first instinct was to ignore it. She was not going to let her brother take money that her mother had expressly directed away from him. But before making any decisions, she needed to understand what her obligations as executor actually were. The executor's position in an FPA claim An executor who receives notice of an FPA claim faces a genuine tension. On one hand, the executor's duty is to carry out the wishes of the deceased as expressed in the will. On the other, the executor has an obligation not to distribute assets in a way that prejudices a claim that may ultimately succeed. Practically, this means that on receiving notice of a claim, an executor should not proceed to distribute the estate — particularly not to residuary beneficiaries — until the matter is resolved. Distributing prematurely, and then having the court make an order for provision, can expose the executor to personal liability. Does the executor have to oppose the claim? Not necessarily. The executor's role in FPA proceedings is primarily to represent the estate and put relevant information before the court — not to act as a champion of the beneficiaries named in the will. In practice, the named beneficiaries (here, Margaret and her sister) will usually wish to actively defend the claim, and they will either be joined as parties or take a position through the executor. Where the claim has genuine merit, settlement may be in the interests of all parties — including the beneficiaries. A prolonged legal dispute depletes the estate. An early, reasonable resolution often leaves everyone better off than a full hearing. What does Margaret need to do now? Engage a solicitor promptly — an FPA claim has procedural steps and timeframes that must be managed Do not distribute any estate assets until the matter is resolved Gather the documentation that will be relevant — the will, the estate inventory, evidence of the relationship between the deceased and the claimant, any relevant correspondence Consider whether the claim has any merit and what a reasonable settlement might look like Keep the beneficiaries informed, while understanding that the executor's duties are to the estate, not exclusively to any individual beneficiary What about the estrangement? Estrangement is relevant, but it is not determinative. Courts look at the cause and nature of the estrangement, and whether the deceased's decision to exclude a family member was a considered response to conduct that justified exclusion, or whether it reflected other factors — animosity, undue influence, a failure to understand the extent of the estate. In James's case, the court would examine the history of the relationship, the reasons for the breakdown, and whether James bears any responsibility for it. If the estrangement was primarily the result of James's own conduct — particularly serious conduct — that will weigh against him. But estrangement alone, without more, rarely justifies total exclusion from a large estate. Getting the right advice  Executors in contested estate matters need advice from a solicitor who understands both the procedural obligations and the substantive law. Getting it wrong — whether by distributing prematurely, failing to engage with the claim properly, or agreeing to an unreasonable settlement — can have serious consequences. Biddulph & Turley acts for both claimants and estates in FPA matters. If you have received a notice of claim, or if you are anticipating one, call 08 9398 5533 for an obligation-free consultation.

A common situation — and one the law expressly contemplates. David is in his mid-forties. His father died six months ago, leaving an estate worth around $5.2 million — the family home in Applecross, a commercial property in Fremantle, and a substantial share portfolio. David's father had remarried eight years ago, and his new wife of seven years is the sole beneficiary under a will made two years after the marriage. David is not destitute. He has a mortgage, two children in private school, and an income that covers his expenses — but not comfortably. He contributed his weekends for three years to renovating the Fremantle property. He was never told he was being removed from his father's estate. He wants to know: can he do anything? The answer, in Western Australia, is yes — he can make a claim under the Family Provision Act 1972 (WA). What the Family Provision Act does The Act allows certain eligible persons to apply to the Supreme Court of Western Australia for provision from a deceased estate, even where a valid will exists and even where the will-maker had the capacity and the legal right to distribute their estate however they chose. The court's task is not to rewrite the will according to what it thinks is fair in the abstract. The question is whether the will (or the intestacy rules, if there is no will) makes 'adequate and proper provision' for the applicant's maintenance, support, and advancement in life. That is a deliberately broad test, and it gives the court significant discretion. David, as a child of the deceased, is an eligible applicant. The fact that he is an adult does not disqualify him. Western Australian courts have consistently held that adult children can and do succeed in FPA claims, particularly where: The estate is large relative to what was left to the applicant The applicant has genuine financial needs or responsibilities There is a history of contribution — financial, practical, or personal — to the deceased or the estate assets The competing beneficiary (here, the surviving spouse) is already independently provided for What about the surviving spouse? A surviving spouse has strong competing claims, and the court will take their needs into account. But 'strong' does not mean 'absolute'. In a $5.2 million estate, it is entirely possible that provision can be made for both a surviving spouse and an adult child — particularly where the spouse has independent assets of their own, a superannuation entitlement, or income-producing capacity. The outcome depends heavily on the specific facts. That is why early advice matters. What did David's contribution count for? Courts in Western Australia and across Australia have consistently held that contributions to an estate — including unpaid labour on estate assets — are relevant to the assessment of a claim. If David can demonstrate the value of the renovation work he performed, and the benefit that accrued to the estate as a result, that will form part of his case. The time limit This is critical. A Family Provision Act claim in Western Australia must be brought within six months of the grant of probate or letters of administration. The court has a discretion to extend that time, but that discretion is not exercised readily, and an extension is never guaranteed. David has six months from the date probate was granted — not from the date of death. If he is approaching that deadline, he needs to act now. What should David do? He should obtain legal advice promptly. At an initial consultation, a solicitor experienced in FPA matters can assess the strength of the claim, identify the competing claimants and their likely positions, advise on the deferred-fee options available, and outline the process from first letter to likely resolution.  Most matters of this kind resolve at or before mediation. Full court hearings are the exception. But the process must begin with a clear-eyed assessment of the facts and the law. If you are in David's position — or something like it — call Reg Biddulph on 08 9398 5533 . Initial consultations are obligation-free.

Case Summary: When a Note Isn’t a Will Imagine this scenario: After a loved one passes away, a note is discovered—perhaps on their phone, in a drawer, or scribbled on a piece of paper. The note sets out some wishes about who should inherit their assets. Family members hope this note will be accepted as the person’s will. But when the matter goes to court, the judge decides the note is not a valid will. This situation is more common than many realize. In a recent case, a note titled “Last Will” was found on the deceased’s phone. While it expressed some intentions about distributing the estate, the court refused to accept it as an “informal will.” Why? In the case of Gallotti v Galotti-Brown [2025] WASC 384 a handwritten ‘amendment’ was written on a duly executed will. Was this amendment part of the will? Why the Note Was Not Accepted Australian law (and the law in many other places) allows courts to accept a document as an “informal will” even if it doesn’t meet all the usual requirements (like being signed and witnessed). But the court must be convinced of three things: There is a document. The document sets out the person’s testamentary intentions (what they want to happen to their property after death). Most importantly: The person intended the document to operate as their will. In the case above, the court found that the note was more of a draft or a statement of wishes—not a final, operative will. There was no evidence the deceased intended the note to be their last will and testament. The absence of a signature, witnesses, or any indication that the note was meant to be final all counted against it. The Dangers of Informal Wills Relying on informal documents—like notes, emails, or unsent text messages—to express your final wishes is risky. Here’s why: Uncertainty: Courts may not accept the document, leaving your estate to be distributed according to the law, not your wishes. Family Disputes: Ambiguous or informal documents can lead to costly and stressful legal battles among loved ones. Delay and Expense: Proving an informal will is often more complicated, time-consuming, and expensive than preparing a formal will. How to Protect Your Wishes Make a Formal Will: The safest way to ensure your wishes are followed is to make a formal will, properly signed and witnessed. Review Regularly: Update your will as your circumstances change. Seek Legal Advice: A qualified lawyer can help you avoid pitfalls and ensure your will is valid. Don’t leave your legacy to chance. A simple note may not be enough—take the time to make a proper will and give your loved ones certainty and peace of mind.

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In recent years, the rise of technology has made it easier than ever to create, store, and even amend important documents like wills. Many people assume they can simply jot down their wishes on their phone or leave a note in a digital app, believing this to be sufficient for estate planning. However, legal cases such as Peek v Wheatley [2025] NSWSC 554 highlight the dangers of informal, unprofessional will-making—especially when using a device like an iPhone. The Case at a Glance In Peek v Wheatley, the court examined whether a note found on the late Colin Peek’s iPhone could be considered a valid informal will under the NSW Succession Act 2006. The note, titled ‘Last Will of Colin L. Peek,’ was discovered after his death, and it appeared to specify how his estate should be distributed—primarily passing significant assets to a friend and executor, Mr Wheatley. However, the court faced the challenge of determining whether this digital note truly represented Colin’s testamentary intention—that is, whether it was his clear, deliberate wish to dispose of his estate as stated, with the intention for it to have immediate legal effect. When Will a Document Be Accepted as an Informal Will? In most Australian States, a document that does not meet the formal requirements of a will (such as being signed and witnessed) can sometimes still be accepted as a valid "informal will" if certain criteria are met. The key questions are: Did the deceased intend the document to operate as a will? Was the document clearly intended to dispose of the estate? Did the document demonstrate a genuine testamentary intention? In Peek v Wheatley, the court examined whether the note on the iPhone was created with the intention for it to serve as the deceased’s final testament. The court recognized that while the note contained the deceased’s wishes, it was unclear whether the document was intended to take effect, without more (that is without the will making doing anything else). It was possibly a “working document” or a ‘dry run’ that might be amended later by the will maker or simply a document that he intended to pass on to his solicitor to prepare a will based upon it. The Pitfalls of Informal, Digital Wills This case underscores why relying on informal methods—such as notes on a smartphone—is perilous: Lack of Formalities: A valid will typically requires signatures, witnesses, and clear language. Digital notes often lack these formalities, making their validity uncertain. Ambiguity of Intent: A casual note or message may not conclusively demonstrate the testator’s intention for the document to be their final will, especially if created in a moment of emotion or without legal advice. Potential for Disputes: Informal documents are more easily challenged, leading to costly and time-consuming court disputes, as seen in this case. Risk of Misinterpretation: Digital notes can be vague or incomplete, and their meaning can be misinterpreted, especially if they are not drafted with legal precision. Why You Should Have a Lawyer Prepare a Formal Will The Peek v Wheatley case exemplifies the importance of engaging a qualified lawyer to draft your will. A lawyer ensures that your testamentary wishes are clearly articulated, legally valid, and less susceptible to challenges. They will: Use precise language to avoid ambiguity Follow all legal formalities (signatures, witnesses) Provide advice on estate planning tailored to your circumstances Minimize the risk of intestacy or disputes after death Final Thoughts While it might seem convenient to jot down a quick note on your iPhone or leave a casual message, this approach is fraught with legal uncertainty. The law prefers formal, properly executed documents to ensure your wishes are respected and to minimize disputes among your loved ones.  If you want your estate to be distributed according to your wishes, consult a qualified estate planning lawyer. They will craft a robust, legally sound will that stands up in court and provides peace of mind for you and your family. Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalised estate planning assistance, please contact a qualified lawyer. Would you like me to help you draft a tailored legal will or provide further information?

The recent case of Diedler v Borowiec 2023 WASC 396 is perhaps a cautionary tale for those beneficiaries of a doubtful will. The Deceased made a will with the Public Trustee in 2018. At the time he has 97 years old. For all intents and purposes, when the will was prepared, the Deceased appeared to have capacity- he lived independently, drove his own car (!) and managed his own finances. He did not want his step son and his own daughter to benefit from his estate. Following a trial , a judge found that the Deceased suffered from delusions at the time he made the will including a belief that his daughter was a witch, was trying to poison him. That she was practising witchcraft and that she flew through his window and was stealing items form him. In fact there had been concerns about his mental health for a least five years prior to him making the will. Following his death, the Public Trustee obtained medical reports and came to the conclusion that the 2018 will was invalid. However, the beneficiaries of the 2018 will were not happy with that decision and decided to seek proof of it by issuing proceedings in solemn form in the Supreme Court of Western Australia. Having lost the case, the question arose as to who should pay the solicitors costs. The court found that, having regard to the medical evidence, it was unreasonable for the beneficiaries of the 2018 will to have sought to prove it. Several offers of settlement (‘Calderbank Offers’) had been made by the beneficiaries of an earlier (1981) will, all of which had been rejected. The court ordered that the Plaintiffs (the beneficiaries of the 2018 will) pay the Defendants costs on an indemnity basis. Those costs would no doubt be very substantial. Although the person seeking to propound the will may have a honest (bona fide) belief that the will is valid, the belief must also be reasonable. On the facts, with the available medical evidence, the court found that the belief was not reasonable and the Plaintiff should bear not only their own legal costs but also the Defendants. As a point of reference, in the Victorian case of O’Donoghue v Mussett [2008] VSC 63, the Plaintiff’s costs were $250,000 up to the third day of a trial. The Defendant’s costs would be similar, so it becomes a very expensive exercise and not on to be lightly undertaken. If you need advice concerning the validity of a will, contact us now.