"It’s obvious what I want." Isn't That Enough?
Why unfinished estate planning can leave your family in the Supreme Court
One of the things that surprises many people is that simply writing down your wishes does not necessarily make them legally effective.
We often hear comments like:
"Everyone knows what I want."
"My lawyer has the draft Will."
"I've written everything down."
Those are all positive first steps. Unfortunately, they are not always enough.
Perhaps you've met with your lawyer and a draft Will has been prepared, but life became busy and you never finished the next steps to sign it. Maybe you've handwritten your wishes and tucked them away with your important papers. Some people leave detailed notes on their computer, in the Notes app on their phone, or send an email or text message to a trusted family member explaining what they want to happen.
After all, if your intentions are obvious, surely the law will respect them?
Unfortunately, it isn't that simple.
Even where everyone agrees about what you wanted, your family may still be required to ask the Supreme Court to determine whether the document is legally effective. That process can involve months of delay, significant legal costs and considerable uncertainty before your estate administration can properly progress.
This exact issue came before the Victorian Supreme Court in Re Phillipson [2020] VSC 857, where an unsigned solicitor-prepared draft Will was ultimately not recognised as the deceased's Will.
What makes a Will valid?
Ordinarily, a Will in Victoria must comply with the formal requirements of the Wills Act 1997 (Vic).
Generally speaking, this means the Will must be:
in writing;
signed by the Will-maker (known legally as the testator); and
witnessed by two people who are present when the Will is signed.
These formalities are not simply technical rules.
They exist to protect you, your family and the integrity of your estate plan. They help ensure the document genuinely reflects your wishes, reduce the risk of fraud or undue influence, and provide certainty for those left behind.
When those requirements have been satisfied, your executor can usually apply for probate without first having to ask the Court whether the document is actually your Will.
Life gets in the way
Very few people deliberately leave their estate planning unfinished.
More often, life simply gets in the way.
People become ill before they can sign.
Appointments are postponed.
Draft Wills arrive in the post but sit on the kitchen bench waiting for "a quieter week" or witnesses to pop over.
Parents delay signing because they are still deciding who should be appointed as a guardian for their children.
Clients wait to give their lawyer the “ok” until after they have purchased that investment property.
Someone writes comments or crossing out all over the draft intending to "sort it out later."
Sometimes that later never comes.
This is where section 9 of the Wills Act 1997 (Vic) becomes important.
Can the Court overlook these formalities?
Sometimes.
Section 9 gives the Supreme Court discretion to admit a document to probate even though it does not comply with the usual signing requirements.
This recognises that life does not always unfold neatly. Sometimes people die unexpectedly before they have the opportunity to properly execute their Will.
However, section 9 is not a safety net for every unfinished estate plan.
The Court does not simply ask whether the document records what the deceased wanted.
Instead, it asks a much more difficult question:
Did the deceased intend this particular document to operate as their Will?
That distinction is subtle but extremely important.
Someone may have intended to sign a document next week.
Someone may have approved every word of a draft prepared by their lawyer.
Someone may even have told their family, "This is exactly what I want."
None of those facts necessarily prove that they intended the unsigned document itself to operate as their Will.
Re Phillipson: when an unsigned draft was not enough
The decision in Re Phillipson illustrates this distinction perfectly.
Mr Phillipson already had a valid Will that had been properly signed several years earlier.
Later, he met with his solicitor to prepare a new Will. Instructions were taken and a draft was prepared.
The problem was that he never signed it.
Following his death, one of his daughters applied to the Supreme Court asking the Court to recognise the unsigned draft as his Will under section 9 of the Wills Act. She also sought to rely upon a handwritten note left by her father.
Another family member opposed the application.
Importantly, the Court's task was not to decide whether the draft reflected Mr Phillipson's wishes.
The question was whether he intended the unsigned draft itself to operate as his Will, despite never completing the formal execution process.
Justice McMillan found there was insufficient evidence of that intention.
The evidence suggested Mr Phillipson intended to sign the document at a later date. There was no convincing evidence that he intended the unsigned draft to take immediate legal effect before that occurred.
The Court therefore refused to admit the draft Will to probate.
Instead, Mr Phillipson's earlier, properly executed Will remained effective.
The handwritten note was also unsuccessful because it depended upon the unsigned draft operating as the deceased's Will.
The hidden cost of unfinished estate planning
One of the most striking aspects of Re Phillipson is not simply the legal outcome.
It is the time.
Timeline
18 July 2019 – Mr Phillipson died.
September 2019 – An application was commenced asking the Court to recognise the unsigned draft Will.
February and March 2020 – The matter came before the Court for directions and another family member was joined to the proceeding.
Throughout 2020 – Further affidavit evidence, discovery and written submissions were prepared and exchanged.
16 December 2020 – The Supreme Court delivered judgment, approximately 17 months after Mr Phillipson's death.
The judgment itself did not administer the estate.
It simply determined which document governed the estate.
Only once that question had been resolved could the successful executor continue the probate process, obtain legal authority to administer the estate, collect the assets, pay liabilities and eventually distribute the estate to the beneficiaries.
In practical terms, it is entirely possible that beneficiaries did not receive their inheritance until close to two years after Mr Phillipson's death.
What did the litigation cost?
The judgment does not tell us exactly how much the parties spent on legal fees.
However, it does record that:
the daughter who brought the application was required to pay her own legal costs;
another party's legal costs were ordered to be paid from the estate; and
all of those costs were incurred before the estate administration could properly proceed.
Every dollar spent asking the Court which document was the deceased's Will was a dollar that could not ultimately be distributed to the beneficiaries. In our experience, we would estimate those collective legal fees to have been no less than $50,000.
That is a significant price to pay for an estate plan that was almost, but not quite, finished.
But doesn't the Court sometimes accept informal Wills?
Yes.
Section 9 exists because there are genuine cases where justice requires the Court to overlook a technical defect.
People sometimes die unexpectedly after making handwritten changes to their Will.
Others leave clear electronic documents or written instructions demonstrating that they intended those documents to operate as their final Will.
In appropriate circumstances, the Court may admit those documents to probate.
The difficulty is that there are no guarantees, so these back up emergency provisions should not be relied on by anyone.
Whether an informal document is recognised depends entirely upon the available evidence and whether the Court is satisfied that the deceased intended that particular document to operate as their Will.
"Everyone knew what Mum wanted"
This is another misconception we hear regularly.
Families often tell us, "We all know what Mum wanted," or "We'll just sort it out ourselves."
Sometimes families are fortunate enough to reach agreement. Unfortunately, agreement does not remove the legal hurdles.
Before assets can be distributed, someone must first have the legal authority to administer the estate. If the document being relied upon is not a formally executed Will, the Supreme Court may still need to determine whether it is legally effective before the administration can properly proceed.
Even once that hurdle has been overcome, "sorting it out later" is not always as simple as people imagine.
Beneficiaries may try to rearrange assets to better reflect what they believe the deceased intended. Depending on the circumstances, those arrangements can have unintended consequences, including stamp duty, capital gains tax, Centrelink (loss of pension) or other financial implications that might have been avoided had the estate plan been properly completed in the first place.
A properly prepared and executed Will is not just about recording your wishes. It provides the legal framework that allows those wishes to be carried out as efficiently and cost-effectively as possible.
The lesson isn't "don't write things down"
Writing down your wishes is an excellent first step.
Meeting with a lawyer and preparing a draft Will is even better.
But neither step completes the process.
Estate planning is only complete when your Will has been properly signed, witnessed and stored so it can be relied upon when it is needed most.
Final thoughts
Victoria's Wills Act gives the Supreme Court an important discretion to recognise informal Wills where justice requires it.
That flexibility is valuable.
It prevents deserving cases from failing simply because of a technical defect.
But it should never be viewed as a substitute for properly completing your estate planning.
As Re Phillipson demonstrates, there is no guarantee that an unsigned draft or informal document will be accepted. The outcome will always depend upon the evidence and the Court's assessment of the deceased's intentions.
The far better outcome is one where your family never needs to ask those questions at all.
A draft Will is exactly that, a draft.
Until your Will has been properly signed and witnessed, there is always a risk that your loved ones may one day find themselves asking a judge whether it was your Will at all.
That is a question no family should have to answer while they are grieving.