An unsigned testamentary document can be validated by a court even where there has been no attempt to have it signed if there is evidence that the deceased intended it to have an operative effect as an unsigned will.

a court can validate unsigned wills but only if they are decisiveConsider the case of David McNamara whose “will” left his wife Ema the family home they had built together at Aloomba near Cairns, his superannuation and insurance benefits plus 50 per cent of the residue.

Equal portions of the other half of the residue went to three children from a former marriage.

David and Ema had lived together for some years as a de-facto couple. In September 2019 they instructed a solicitor for their wills.

Soon after receiving their draft copies, David requested his was amended by including his brother’s name as an alternate executor. He asked Ema to send the draft back to the solicitor to make the necessary changes. They promptly received back the revised version by email.

They married on Fitzroy Island in March 2020 as the Covid pandemic began to sweep the country.

Fearing a high risk of infection due to an underlying heart condition, David decided to self-isolate. He died suddenly in July 2020. The couple never executed their wills.

Ema swore in her affidavit in support of an application under s 18 of the Succession Act for an order validating the unexecuted will, that David told her he was happy with the provisions of the revised will and had asked her to make an appointment with the solicitor for its signing.

The appointment was pushed back on several occasions due to his work commitments.

The issue for determination by Justice Jim Henry in the Supreme Court at Cairns was whether – in the absence of any attempt at execution – the deceased intended that the unexecuted document would have an operative effect so that it constituted his will.

In spite of Emma’s evidence and that of good friend Alan to effect that the will articulate his desires, his Honour was not satisfied that anything David had said was a “positive indication” that he “apprehended he had actually taken the step necessary for the unexecuted will to be operative”.

That was enough to dispose of the application but his Honour further observed that his avoidance of attending on the solicitor to sign the document likely reflected “a tension in David’s mind that things would not go smoothly” after his death and “bespeaks a hesitancy in perfecting his choice to favour his wife relative to his children”.

“It is well known to the human condition that from time-to-time decisions involving a choice between conflicting loyalties are dealt with by being avoided,” Justice Henry wrote.

Not being satisfied that David’s mind had reached the point where he intended that his unexecuted will would be operative, Ema’s s 18 application was dismissed.

The Court ordered instead in favour of Ema’s alternative request for a grant of Letters of Administration in respect of David’s estate as a result of intestacy, in which Ema’s benefit will be less than she would have received had the will been duly executed.

Re McNamara [2021] QSC 148, Henry J, 21 May 2021