Formal vs. Informal Wills in Australia
A will directs what happens to your assets after you die. It also names your executor and can appoint guardians for children. For a will to work the way you intend, the law expects a clear document that follows set rules. Those rules help prevent fraud, mistakes, and disputes.
You will hear the terms formal will and informal will. A formal will meets the strict signing and witnessing requirements set by each state and territory. An informal will does not meet those rules. Courts can sometimes accept an informal document as a will, but it takes extra steps, evidence, and time.
Your choice between informal wills vs formal wills has practical consequences. A well-drafted, properly executed will is faster to prove and cheaper to administer. An informal document can be rescued in some cases, but the legal process is more complex and the costs can climb quickly. Read on for a clear breakdown of NSW requirements for a valid will, examples of informal documents that can and can’t be saved, the likely costs of proving them, and when to seek legal help.
What makes a will “formal” in Australia
Each state and territory sets out how a valid will must be executed. While wording differs, the core rules are similar:
- The will must be in writing.
- The will-maker (testator) must sign it, or direct someone to sign in their presence.
- The signature must be made or acknowledged in the presence of at least two witnesses present at the same time.
- At least two witnesses must then attest and sign in the testator’s presence.
For example, New South Wales sets this out in Succession Act 2006 (NSW) s6. Victoria sets it out in Wills Act 1997 (Vic) s7. Similar rules appear in the ACT and other states. Remote witnessing is possible in some places under specific provisions.
Why these rules matter: The witnessing rules exist to prevent fraud and mistakes. When a will is properly executed, probate is normally faster and cheaper because the registry can rely on the formalities rather than having to reconstruct the will-maker’s intentions.
- Speed and certainty: Probate registries can process standard applications with fewer hurdles.
- Lower legal spend: No need for extra affidavits or contested hearings to “prove” the document.
- Fewer disputes: Proper form makes it harder to allege fraud, coercion, or error.
What is an “Informal Will”?
Australian courts can sometimes “dispense” with formalities and accept an informal document as a will. The exact section differs by state:
| Jurisdiction | Act and Section | Core Statutory Provision (The Document Must…) |
|---|---|---|
| New South Wales | Succession Act 2006 (NSW) s8 | A document that purports to state the testamentary intentions of a deceased person forms the will if the Court is satisfied that the person intended it to form his or her will. |
| Victoria | Wills Act 1997 (Vic) s9 | The Supreme Court may admit to probate a document which has not been executed formally, if the Court is satisfied that that person intended the document to be his or her will. |
| Queensland | Succession Act 1981 (Qld) s18 | A document that purports to state the testamentary intentions of a deceased person forms a will if the court is satisfied that the person intended the document or part to form the person’s will. |
| Australian Capital Territory | Wills Act 1968 (ACT) s11A | A document, or part of a document, purporting to embody testamentary intentions of a deceased person shall constitute a will notwithstanding that it has not been executed formally. |
| Western Australia | Wills Act 1970 (WA) s32 | A document purporting to embody the testamentary intentions of a deceased person constitutes a will if the Supreme Court is satisfied that the person intended the document to constitute the person’s will. |
These provisions let a court admit a “document” that records testamentary intentions even if it lacks signatures or witnesses, provided the court is satisfied it was intended to operate as the will.
Courts often apply the approach from Hatsatouris v Hatsatouris [2001] NSWCA 408. In plain terms, the court asks:
- Is there a “document”?
- Does it state testamentary intentions?
- Did the deceased intend the document to operate as their will, without anything more?
Risks of Informal Wills
Informal wills can work, but they come with real risks. Because they don’t meet the usual witnessing rules, your executor may face extra court steps, heavier proof, delays, and higher costs.
Missing signatures and unwitnessed documents
Executors must seek a court declaration under state-specific sections (e.g., s8 NSW). Extra proof and affidavits are required.
Capacity, undue influence, and authenticity
Courts examine whether the will-maker was of sound mind, free from pressure, and whether the document is genuine. Affidavits from executors, witnesses, doctors, or digital evidence may be required.
Delay and extra evidence
-
- Detailed affidavits about creation circumstances.
- Evidence of intent, including emails or texts.
- Technical proof for electronic documents.
When an informal will may fail
If the court is not satisfied the document was meant to be a will, intestacy rules or a prior valid will apply.
Informal Wills vs. Formal Wills: Quick Comparison
| Feature | Formal will (s6 compliant) | Informal will (needs s8 order) |
|---|---|---|
| Execution | Signed by testator before two witnesses present at the same time who sign in testator’s presence | Not properly executed (no witnesses, one witness, unsigned, digital) |
| Court steps | Standard probate | Extra section 8 declaration + supporting affidavits |
| Timing | Generally faster | Usually slower (evidence gathering; possible hearings) |
| Cost | Filing fee + routine legal fees | Higher overall due to extra evidence/procedures; can be thousands more |
| Dispute risk | Lower | Higher (intention, authenticity may be contested) |
| Predictability | High | Case-by-case; fact-sensitive |
Costs: Formal vs. Informal (What To Expect)
All probate applications attract court fees. Examples:
- NSW: Filing fees for grants, with higher fees for large estates.
- Victoria: Tiered fees, increases in 2024 for larger estates.
- Queensland: Supreme Court probate filing fee $819.90 (2025/2026).
Why proving an informal will often costs thousands
Extra affidavits, hearings, and preparation can push costs into the thousands, on top of court fees. Standard fixed-fee probate services are usually $1,800–$2,000 plus court fees; complex informal applications exceed that.
How To Get It Right The First Time
Practical checklist for a valid will
- Write the will clearly. Avoid ambiguous language.
- Sign in front of two adult witnesses who are present together.
- Have each witness sign in your presence.
- Use witnesses who are not beneficiaries.
- Initial and number each page. Keep pages fastened.
- Consider remote witnessing rules only with legal guidance.
Update and store safely
Update your will after major life events. Store the original safely and tell your executor. Keep an electronic copy, but formalities may still be required for digital files.
Choose executors and witnesses carefully
Pick organised, trustworthy executors. Avoid beneficiaries as witnesses to prevent disputes.
Why professional drafting saves money
A lawyer ensures the will is valid, covers all assets, superannuation, and blended families. Professional drafting is modest compared with costs of proving an informal will.
Informal Will Examples (And What the Court Looks For)
- Digital notes or emails: Courts may accept if clearly intended as final will, e.g., “this is my last will”.
- Unsent text message: Courts may accept if the content shows final testamentary intentions, though risky.
- Handwritten notes: Must show clear intention, not casual thoughts.
- Old “home-made” wills with later changes: Court decides what counts as valid, which can cause delays.
Final Thoughts
Informal wills are a safety net, not a plan. Formal wills are faster, cheaper, and less likely to spark disputes. For certainty and cost-efficiency, have a professional draft and witness your will.
M de Mestre Lawyers can prepare a valid will, advise on informal wills, and handle complex probate. Contact us on 0401 513 190 or [email protected].
Frequently Asked Questions (FAQs)
What is the difference between an informal will and a formal will? A formal will meets legal signing and witnessing requirements. An informal will does not and needs court approval.
What are the formal will benefits? Faster, cheaper probate and lower dispute risk.
What are common informal will examples? Unwitnessed handwritten notes, emails, phone notes, or unsent texts. Only accepted if the court is satisfied.
What is the cost of proving an informal will? Often thousands of dollars, more than a formal will.
What are the informal will requirements the court looks for? Must record testamentary intentions with clear evidence the deceased intended it to operate as their will.
