Informal wills in NSW: can they be valid?

12 August 26
News Articles

An informal document can be admitted to probate as a valid will in New South Wales. Section 8 of the Succession Act 2006 (NSW) gives the Supreme Court power to dispense with formal execution requirements where it is satisfied the deceased intended a document to operate as their will. That power is real, but it is discretionary and entirely fact-specific. The Court will not simply rubber-stamp a handwritten note or a saved phone file. You need evidence, and you need it preserved quickly.

If you have found a document that might be an informal will in NSW, take these steps immediately:

  • Secure the original document and do not alter it.
  • Search for any formal will (check with the deceased’s solicitor, bank, and filing).
  • Preserve all devices and digital files without deleting or forwarding anything.
  • Contact a wills and estates lawyer to assess the document before taking any further action.

Key takeaways

An informal will in NSW can be valid, but only if the Court is satisfied under s 8 of the Succession Act 2006 (NSW) that the deceased intended the document to operate as their will without any further act.

Point Details
Section 8 is the legal basis The Succession Act 2006 (NSW) s 8 lets the Court dispense with formal execution requirements where testamentary intention is proved.
Evidence and finality are decisive Courts focus on language of finality, dates, signatures, and contemporaneous statements; drafts and unfinished documents usually fail.
Preserve originals and devices immediately Secure the document and all devices before taking any other action; altered metadata can undermine a digital informal will application.
Expect higher costs and longer timelines Informal will applications involve additional affidavits, notice requirements, and possible contested hearings, all of which add time and cost.
Simons George Legal can help The firm handles s 8 applications, digital evidence, and contested hearings; new clients receive a complimentary 30-minute consultation.

Table of Contents

What is an informal will in NSW, and how does it differ from a formal will?

Under NSW law, a formal will must be in writing, signed by the testator, and witnessed by two adults who are present at the same time and who also sign the document. Those requirements come from the Succession Act 2006 (NSW) and have been the standard for decades.

An informal will is any document that purports to record testamentary intentions but falls short of those formal requirements. It might be unsigned, witnessed by only one person, recorded digitally, or never printed at all. Courts have considered handwritten letters, unsent emails, draft wills, voice memos, and iPhone Notes files.

Feature Formal will Informal will
Format Written document Any document or record
Signature Testator must sign May be unsigned or initialled
Witnesses Two adult witnesses, present together None required (but absence weakens the case)
Storage Typically held by solicitor or executor Found on devices, in drawers, in email drafts
Probate path Standard probate application Requires a separate s 8 declaration from the Court

The key practical difference is the probate path. A formal will goes through a relatively predictable process. An informal document requires the Court to make an additional finding under s 8 before probate can be granted, which adds time, cost, and uncertainty.

Common examples of documents courts have been asked to consider as informal wills include:

  • Handwritten notes or letters addressed to family members
  • Printed but unsigned draft wills prepared by a solicitor
  • Emails or text messages describing intended distributions
  • Digital notes saved on a phone or tablet
  • Online will-making forms that were completed but never executed

When will the Court admit an informal will? The s 8 test explained

Section 8 of the Succession Act 2006 (NSW) sets out a three-part test. The Court must be satisfied that:

  1. There is a document (broadly defined to include any record of information, including electronic records).
  2. The document purports to state the testamentary intentions of the deceased.
  3. The deceased intended the document to form their will without any further act on their part.

The third element is the hardest to prove. It is not enough to show the deceased had testamentary wishes, or even that they intended to make a will one day. As a 2011 NSW Supreme Court decision made clear, the applicant must prove the deceased intended that particular document to operate as their will at the time it was created or last acted upon. A draft the deceased planned to revise, or a note they intended to take to a solicitor, will generally fail on this element.

The burden of proof sits with the applicant. The standard is the civil standard: the Court must be satisfied on the balance of probabilities. Extrinsic evidence is expressly permitted and often decisive. Courts will consider:

  • Statements the deceased made to friends, family, or professionals about the document
  • The circumstances in which the document was created (sudden illness, emergency, or deliberate act)
  • Whether the deceased took any steps after creating the document that are consistent or inconsistent with treating it as their will
  • The language used in the document itself, particularly whether it uses words of finality (“this is my will”, “I leave everything to”)
  • Whether the deceased retained custody of the document or delivered it to someone

As Hatsatouris v Hatsatouris [2001] NSWCA 408 established, the s 8 inquiry is essentially a question of fact. Courts weigh all available documents and extrinsic evidence together rather than applying a mechanical checklist.

How to apply for probate of an informal will in NSW

The Supreme Court of NSW sets out the practical filing requirements for an informal will probate application. The process runs alongside a standard probate application but with additional steps.

  1. Secure and copy the document. Photograph or scan the original, but keep the original intact. For digital documents, preserve the device and take a forensic image if possible.
  2. Search for a formal will. Check with the deceased’s solicitor, the NSW Trustee & Guardian, any bank safe custody, and the deceased’s personal files. The application must disclose all earlier wills.
  3. Identify intestacy heirs. Work out who would inherit if the informal will fails and there is no formal will. These people must be served with notice or their consent obtained.
  4. Prepare the summons (UCPR Form 111). The summons must include an additional claim for a declaration under s 8 that the document constitutes the deceased’s will.
  5. Prepare supporting affidavits. Affidavits must cover the circumstances in which the document was found, the deceased’s state of mind, any earlier wills, the identity of intestacy heirs, and the evidence of testamentary intention. Omitting a key witness or piece of metadata can materially weaken the application.
  6. File and serve notices (UCPR Form 134 / Supreme Court Rules Part 78). Persons who would take under intestacy and who are adversely affected by the informal will must be served. Failure to serve correctly can result in adjournments or dismissal.
  7. Attend directions and any contested hearing. The Registrar may refer the matter to a Judge if the application is contested or the evidence is complex.

On timing, the general guidance is to apply within six months of the date of death, though the Court has discretion to extend time. Probate timelines in NSW for informal will applications are typically longer than standard grants, often by several months, particularly where notice requirements generate disputes or where contested hearings are needed.

Pro Tip: Before filing, prepare a detailed chronology of how the document came into existence, who knew about it, and what the deceased said or did afterwards. Courts respond well to a clear, well-organised narrative supported by contemporaneous evidence.

What evidence helps prove an informal will?

Evidence is where informal will applications are won or lost. The strength of the application depends almost entirely on what you can put before the Court to satisfy the third s 8 element: that the deceased intended the document to operate as their will right then, without anything further.

Useful evidence includes:

  • Handwriting and signature. A document in the deceased’s own handwriting, particularly one that is signed or initialled, carries significant weight. The 2024 NSW Supreme Court decision that admitted notepad pages as a will relied heavily on the combination of handwriting, signature, and consecutive pagination.
  • Dates and pagination. A dated document with numbered pages suggests deliberateness. An undated, single-page note is harder to place in context.
  • Explicit testamentary language. Phrases like “I leave” or “this is my will” are powerful. Vague expressions of preference are not.
  • Contemporaneous statements. Evidence from friends, family, or professionals that the deceased said “I’ve sorted my will” or “I’ve written down what I want” can be decisive.
  • Delivery. If the deceased gave the document to someone for safekeeping, that act strongly suggests they intended it to have immediate effect.
  • Digital metadata. For electronic documents, file creation timestamps, modification history, cloud backup records, and device logs can establish when the document was created and whether it was altered. The Notes app on an iPhone, for example, records creation and modification timestamps that can be extracted.
  • Device context. Which app was used? Was the file named? Was it stored in a folder labelled “will” or “important”? These details matter.

Digital evidence can also be disputed. A file that was edited multiple times, or that shows signs of being a draft, may undermine the finality argument. Metadata can be challenged by the opposing party’s own digital expert.

Pro Tip: Do not forward, copy, or email digital files before getting legal advice. Every interaction with a digital document creates a new metadata record. Preserve the device in its current state, keep it charged, and hand it to your lawyer before doing anything else.

Hands placing phone in evidence bag

Risks, likely costs, and common outcomes when relying on an informal will

Section 8 is a safety net, not a guarantee. The Law Society Journal has cautioned that s 8 is designed for exceptional circumstances and should not be treated as a substitute for proper will-drafting. Relying on an informal document carries real risks.

Risks to understand:

  • Rejection and intestacy. If the Court is not satisfied of testamentary intention, the informal document fails and the estate is distributed under the intestacy rules. That outcome may be very different from what the deceased wanted.
  • Family provision claims. Even if the informal will is admitted, eligible persons can still bring family provision claims against the estate. An informal will that omits a spouse or child is particularly vulnerable.
  • Longer delays. Informal will applications take longer than standard probate grants. Contested applications can take a year or more.
  • Higher legal costs. Affidavits, forensic handwriting or digital experts, service requirements, contested hearings, and potential appeals all add cost. Those costs are typically paid from the estate, reducing what beneficiaries receive.
  • Evidentiary disputes. Opposing parties can challenge the authenticity of the document, the deceased’s capacity, or the reliability of witness evidence.
  • Estate depletion. In a contested informal will application, legal costs can consume a significant portion of a modest estate.

Likely outcomes range from full probate being granted (the informal will is admitted and administered as though it were a formal will), to partial admissions (only some provisions are accepted), to the application failing entirely and letters of administration being granted to the next of kin under intestacy.

What to do if you find an informal will after someone dies

Speed and care in the first 48 hours can make a material difference to the outcome of an informal will application. Here is the ordered sequence.

  1. Secure the original document immediately. Do not leave it where it was found. Place it in a sealed envelope and store it safely.
  2. Photograph or scan the document before handling it further. Keep the original untouched.
  3. Search the deceased’s devices, email, and filing for any other documents that might be a formal will or an earlier informal document.
  4. Check for a formal will with the deceased’s solicitor, the NSW Trustee & Guardian, and any bank safe custody.
  5. Preserve all devices. Leave phones and computers powered on and charged where it is safe to do so. Do not delete emails, messages, or files.
  6. List possible witnesses and their contact details. Anyone who heard the deceased talk about the document or their wishes is potentially a witness.
  7. Identify who would inherit under intestacy. These people have a legal interest in the application and must be notified. The intestate succession rules in NSW determine who they are.
  8. Contact a wills and estates lawyer before taking any further steps. The estate administration checklist for executors is a useful reference, but legal advice specific to the document is essential.

Pro Tip: Avoid forwarding emails or text messages that might be relevant to the application. Every forward creates a new timestamp and can complicate the metadata picture. Screenshot rather than forward, and hand the device to your lawyer.

How NSW courts have applied the s 8 test: case examples and lessons

The case law shows courts applying the s 8 test with genuine rigour. Three examples illustrate the range of outcomes.

Handwritten notepad admitted: the 2024 decision

In a 2024 NSW Supreme Court decision, handwritten pages from a notepad were admitted to probate as the deceased’s will. The pages were in the deceased’s handwriting, signed, consecutively numbered, and used explicit testamentary language. The Court was satisfied that the combination of those features, together with evidence about the circumstances of writing, showed the deceased intended those pages to operate as their will immediately and without further action.

Unsigned draft rejected

Courts have consistently refused to admit unsigned draft wills where the evidence suggests the deceased intended to take the document to a solicitor for formal execution. In those cases, the draft fails the third s 8 element: the deceased did not intend it to operate yet. The presence of tracked changes, version numbers, or a solicitor’s covering letter saying “please review and sign” are all indicators that the document was not intended to have present operation.

Wheatley v Peek: the iPhone Notes decision

The NSW Court of Appeal in Wheatley v Peek [2025] NSWCA 265 confirmed that a digital note saved in an iPhone Notes app may be admitted to probate as an informal will where the Court is satisfied the deceased intended the note to operate as their will. The Court overturned a lower-court finding, accepting that the wording and context of the note demonstrated clear and final testamentary intention.

The practical lessons from Wheatley v Peek are significant. Courts will now look at the text of a digital note, the circumstances of its creation, and the surrounding evidence of the deceased’s statements and conduct. A note that says “this is what I want to happen when I die” and names specific beneficiaries and assets is in a very different position from a note that says “must remember to update will.” Finality of language and context of creation are the two factors that matter most.

The broader lesson from the case law is this: courts focus on what the deceased actually intended at the moment of creation, not what they might have intended in the future. Documents that look like works in progress face a steep evidentiary climb.

How to avoid informal will problems: a practical do and don’t guide

The simplest way to avoid an informal will dispute is to make a properly executed formal will. The NSW will requirements are not onerous, and the cost of getting it right is a fraction of the cost of litigating an informal document.

Do:

  • Sign your will in front of two adult witnesses who are both present at the same time and who also sign.
  • Store the original with your solicitor, in bank safe custody, or with your executor in a known location.
  • Review your will after major life events: marriage, separation, divorce, the birth of a child, or a significant change in assets.
  • Get legal advice for complex estates, blended families, or business succession situations.
  • Consider digital estate planning to address passwords, online accounts, and digital assets alongside your formal will.

Don’t:

  • Rely on an unsent draft, a saved note, or an email as a substitute for a signed will.
  • Assume a handwritten note will be admitted just because it is in your handwriting.
  • Store your will somewhere only you know about.
  • Leave years between reviews, particularly after a relationship change.

The Law Society Journal’s commentary on informal wills is pointed on this: s 8 exists for genuine emergencies, not as a fallback for people who meant to get around to making a proper will. Using it as a planning tool is expensive and uncertain.

Dealing with an informal will is one of the more demanding tasks in estate administration. The evidentiary work, the procedural requirements, and the risk of a contested hearing all require experienced legal handling.

Simons George Legal

Simons George Legal is a dedicated wills and estates practice based in Bondi, serving clients across Sydney, the Eastern Suburbs, Northern Rivers, and regional NSW. The firm handles the full scope of informal will matters: preparing s 8 applications, drafting the affidavits that narrate testamentary intention, preserving and presenting digital evidence, running contested hearings, and defending against family provision claims where the informal will is challenged.

The firm’s familiarity with recent appellate decisions, including Wheatley v Peek, means clients get advice grounded in how courts are actually deciding these cases right now, not how they decided them a decade ago. For executors and families facing a digital informal will, that currency of knowledge matters.

New clients receive a complimentary 30-minute consultation. Book yours with the wills and estates lawyers at Simons George Legal to get a clear assessment of the document, the evidence, and the realistic path to probate.

The cost of an informal will application can be a real concern, particularly when the estate is modest or the outcome is uncertain. Simons George Legal offers No Win, No Fee arrangements for eligible cases, meaning you may be able to pursue a legitimate claim without paying legal fees upfront.

Eligibility is assessed during a free initial consultation. The firm will review the document, the evidence, and the likely strength of the application before recommending whether a conditional fee arrangement is appropriate. For people with a genuine claim who cannot absorb the upfront cost of litigation, this removes the financial barrier to getting proper legal help.

Book a free case assessment with Simons George Legal to find out whether your matter qualifies.

No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.

The single biggest mistake families make with informal will applications is waiting. Evidence degrades fast: witnesses forget details, devices get reset, and documents get moved or lost. Every week that passes without legal advice is a week in which the evidentiary foundation of the application quietly erodes.

Getting a lawyer involved early means the original document is properly secured, witness statements are taken while memories are fresh, and digital devices are preserved before anyone inadvertently alters the metadata. It also means the intestacy heirs are identified and approached correctly from the start, which reduces the risk of a contested hearing.

Simons George Legal offers a complimentary initial consultation specifically so that families and executors can get a quick, honest assessment of where they stand without committing to a retainer. If you have found a document that might be a will, use that consultation before doing anything else.

Sources

This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.

FAQ

Is an informal will valid in NSW?

Yes, an informal will can be valid in NSW if the Supreme Court is satisfied under s 8 of the Succession Act 2006 (NSW) that the document purports to state testamentary intentions and the deceased intended it to operate as their will. Admission is discretionary and depends entirely on the evidence.

Can a digital note or phone file be admitted as a will in NSW?

Yes. The NSW Court of Appeal confirmed in Wheatley v Peek [2025] NSWCA 265 that a note saved in an iPhone Notes app can be admitted to probate where the wording and surrounding circumstances show the deceased intended it to operate as their will with finality.

Do all wills have to go through probate in NSW?

Not always. Small estates with no real property and limited assets may be administered without a formal grant of probate, depending on the institutions involved. For most estates, particularly those with real property or significant assets, a grant of probate or letters of administration is required before the estate can be distributed.

How much does it cost to make a will in New South Wales?

The cost of a formal will varies depending on complexity. A straightforward will drafted by a solicitor typically costs less than the legal fees involved in a contested informal will application, which can run to thousands of dollars in affidavits, expert reports, and hearing time. Getting a formal will made is almost always the more cost-effective option. Simons George Legal offers a complimentary initial consultation to discuss your situation.

Who does not pay probate fees in NSW?

Probate filing fees in NSW are set by the Supreme Court and are calculated on the value of the estate. Small estates below the prescribed threshold may attract reduced or no filing fees. The specific thresholds are set by the Supreme Court Rules and are subject to change; check the current fee schedule on the Supreme Court of NSW website or confirm with your solicitor.

This article provides general information about informal wills in NSW and is not legal advice. Laws and court procedures change; confirm current requirements with a qualified NSW solicitor or the Supreme Court of NSW before taking action.

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