Posted on September 16, 2026
Josh Bryson
A Will is a written legal document which states a person’s intentions and instructions on what is to be done with their assets owned at the date of your death. This may include things such as property, money and personal possessions.
Simple right? But what is required for a written document to be a valid will?
While typically in Victoria there are strict formalities in relation to the execution, witnessing and preparing of a Will, but pursuant to Section 9 of the Wills Act 1997 (Vic), the Supreme Court has discretion to dispense of these formal requirements.
This discretion has recently been exercised by the Supreme Court of Victoria in the matter, Re the Estate of Gigliotti [2026] VSC 550, where an informal Will was accepted to be an intended Will.
Re the Estate of Gigliotti [2026] VSC 550
The Estate of Gigliotti is a dispute as to whether the initially drafted 2022 Will should be considered the final Will noting the existence of an informal Will dated 8 June 2023.
The Deceased made a Will in 2022 with his longtime solicitor. He had no children and named his cousin as the sole beneficiary.
Three days prior to his death, the Deceased executed an informal Will handwritten by the deceased’s sister. Th Will provided for various gifts to his sister and various family and friends. The Will was then executed by the Deceased and signed by the sister’s partner as a witness.
The Cousin argued that the informal Will was not valid and that the 2022 Will should remain.
The Court determined whether the informal Will was intended to be a final Will and adequately expressed the Deceased’s intentions. The Deceased’s testamentary capacity was also assessed.
The Court heard evidence from various family members as well as medical experts. The Court determined that the evidence sworn by the Deceased’s partner, sister, sister’s partner, and sister’s child were credible and satisfied that the informal Will was intended to be the Deceased’s final Will and records the testamentary intentions.
One issue arose where the informal Will was signed by one witness, being the Deceased’s sister’s partner. For a Will to be valid it must be signed and witnessed by two people. The Deceased’s sister was under the assumption that as she was named as a beneficiary, she was unable to witness the execution of the Will. We note that it is recommended that an independent person witness a Will to avoid claims such as undue influence, but if you are an interested party, you are not disqualified from witnessing the Will. The Court found that the sister’s assumption was genuine and should not invalidate the informal Will.
The Cousin presented evidence of a medical expert to state that the Deceased lacked testamentary capacity. However, the Court found that no medical expert could adequately confirm that the Deceased did not have capacity at the time of executing the informal Will, and therefore accepted evidence sworn by the Deceased’s family members that the deceased did have testamentary capacity at the time of executing his informal will.
The Court therefore confirmed the document as an informal Will that should be admitted to probate.
Formal Requirements of a Will
We note that while informal Wills can be accepted by the Court it is always beneficial to have a formal Will be prepared to avoid disputes and unnecessary litigation costs.
For a Will to be a valid formal Wil, it requires that:
- it is in writing;
- the will-maker has the requisite capacity to understand the contents of the Will and the effect of their Will;
- the will-make voluntarily makes their Will;
- there are signatures of 2 valid witnesses; and
- the Will accurately reflects the will-maker’s testamentary intentions.
At Scanlan Carroll Lawyers we are able to prepare your estate planning documents to ensure that they are valid.
If you are unsure whether a document is an informal Will, or you wish to prepare your estate planning documents, it is important to seek legal advice as soon as possible. At Scanlan Carroll Lawyers we have an experienced Wills and Estates team that can assist you with all your needs.
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