Can a Text Message or Email Be a Valid Will in Victoria?

Formal Execution under Section 7

Section 7 of the Wills Act 1997 (Vic) sets the formal requirements for a valid Will. In substance the Will must be in writing and signed by the testator, or by another person in the presence of and at the direction of the testator. The signature must be made with the intention of executing a Will (it need not be at the foot of the document), and must be made or acknowledged in the presence of two or more witnesses present at the same time. At least two witnesses must attest and sign the Will in the testator’s presence, but not necessarily in each other’s presence. Under section 10, a person who cannot see and attest the testator’s signature cannot act as a witness. An attestation clause is not required for validity, except as the remote execution procedure requires.

A document that satisfies section 7 is presumed valid subject to the usual questions of capacity, knowledge and approval, undue influence and fraud. A document that does not satisfy section 7 is not a valid Will on that account, but it may still be admitted to probate under section 9 if the Court is satisfied the deceased intended it to be their Will.

Remote Execution — Sections 8A to 8D

The Wills Act contains a remote execution regime in sections 8A to 8D, inserted in 2021, that allows a Will to be signed and witnessed by audio-visual link or a mix of physical presence and audio-visual link. Under section 8A, one witness must be a special witness, every step must be carried out on the same day and within Victoria, the witnesses must clearly see the testator sign (or see and hear the testator direct a substitute signatory), and the special witness signs last. The Will is transmitted electronically to remote witnesses, who must be reasonably satisfied it is the same document the testator signed and must note on it that they witnessed it by audio-visual link.

Under section 8B, the document checked and signed by the special witness is the valid Will, and counterparts are not. Section 8C allows the procedure to be recorded only if all participants consent, and the presence or absence of a recording does not affect validity. Section 8D provides that the procedure applies in addition to testators’ and witnesses’ other legal duties. A Will that fails to comply with the procedure may still be considered under section 9.

The Section 9 Dispensing Power

Section 9(1) empowers the Supreme Court of Victoria to admit to probate, as a deceased person’s Will, a document that was not executed as the Act requires, or a document containing an alteration that was not so executed, if the Court is satisfied that the person intended the document to be their Will. Section 9(2) operates in the other direction: the Court may refuse to admit a Will to probate if satisfied the testator intended to revoke it by informal writing. Under section 9(3) the Court may have regard to evidence about the manner in which the document was executed and evidence of the testator’s testamentary intentions, including their statements. Section 9(4) applies whether the document came into existence in Victoria or elsewhere.

Section 9(6) gives “document” the meaning in the Interpretation of Legislation Act 1984 (Vic). Under section 38 of that Act, the term extends beyond writing to items such as photographs, discs, tapes and other devices in which sounds, data or visual images are embodied so as to be capable of reproduction, and anything marked with words, figures, letters or symbols capable of carrying a definite meaning. That is wider than the general definition elsewhere in the Wills Act, and is capable of extending to emails, text messages, notes typed into a phone, computer or cloud files and recordings. Breadth of definition is not a presumption that electronic material is a Will. Interstate decisions under similar provisions illustrate both outcomes: an unsent text message was admitted in Re Nichol; Nichol v Nichol [2017] QSC 220, while a phone note titled as a last Will was not admitted in Peek v Wheatley [2025] NSWSC 554 because the Court was not satisfied the deceased intended it to operate as his Will without more.

A Victorian example is In the Matter of the Estate of Bruce William Standish (deceased) [2018] VSC 629. The deceased had made an audio recording of instructions he gave to his solicitor, and a proceeding under section 9 sought to have the recording admitted to probate as his Will. The parties agreed that the audio recording was capable of constituting a “document” for the purposes of the section, and the Court did not decide the point (at [15]). Applying the principles it adopted from earlier decisions (at [34]–[35]), the Court found that the applicants had not established that the claim had no real prospect of success and that the case for the recording was “not a fanciful one”, and dismissed the applications for summary judgment (at [36]–[46], especially [37], [41], [46]). The decision was not a final admission of the recording to probate: whether the recording should be admitted, and whether it was a document or a Will, remained for trial. The Court’s reasoning illustrates the central issue in such cases: whether the evidence establishes that the deceased intended the particular recording itself to operate as their Will, rather than merely recording instructions for a Will to be prepared and executed later.

Section 9(5) allows the Registrar of Probates to exercise the section 9 power only where the Court has authorised it and either everyone affected consents or, without consent, the estate is within the value limit set by the Court. Otherwise the application is decided by a judge or associate judge.

Testamentary Intention on the Evidence

Testamentary intention means the intention that the document operate, in its own terms, as the testator’s Will, alteration or revocation. An aspirational note about wanting to make a Will is not the same as an intention that the note itself be the Will. A letter of instruction to a lawyer describing a proposed Will is often not itself the Will.

Evidence relevant to intention may include the language of the document, the surrounding circumstances (including proximity to death), statements made by the deceased, arrangements to sign a formal Will and whether they were frustrated, other electronic communications, and the deceased’s prior testamentary history. The Court weighs the material available and decides on the balance of probabilities, with the care the seriousness of the issue requires. Format alone does not establish or defeat intention.

Capacity, Knowledge and Approval, Undue Influence and Fraud

Admission under section 9 addresses whether the deceased intended the document to be their Will. It does not answer the separate questions that arise in relation to any Will:

• Testamentary capacity at the time the document was made, assessed by reference to the Banks v Goodfellow standard as applied in Victoria.
• Knowledge and approval of the contents of the document.
• Undue influence, which in a probate context requires actual coercion overbearing the free will of the testator, not merely persuasion, argument or family pressure.
• Fraud, including fabrication of the document or misrepresentation to the testator.

Each of these is dealt with on its own evidence. A finding on intention under section 9 is not a finding on capacity, knowledge and approval, undue influence or fraud.

Revocation and Later Documents

The interaction of an informal document with a prior formal Will can be complex. A later document may be admitted as an informal Will and may operate to revoke or amend a prior Will if the intention to do so is established, and an informal document containing an alteration may be admitted under section 9(1)(b). Informal writing intended to revoke a Will may lead the Court to refuse probate of that Will under section 9(2). The result depends on the terms of the informal document and the evidence, considered against the methods of revocation in section 12 of the Wills Act and the effect of marriage and divorce under sections 13 and 14.

Proof of a Lost or Copy Will

Where the original Will cannot be produced, the Court can in defined circumstances admit a copy of the Will to probate or grant probate on secondary evidence. That is a separate jurisdiction from section 9. It generally requires evidence that the Will was duly executed, evidence of its contents, and evidence to displace the presumption that a Will last known to be in the testator’s possession and not found on death was destroyed with intent to revoke. The application is governed by the Supreme Court (Administration and Probate) Rules 2023 (Vic) and Court guidance.

Statutory Wills — Part 3

Part 3 of the Wills Act 1997 (Vic) enables the Supreme Court to authorise a Will, an alteration or a revocation for a person who lacks testamentary capacity. Applications require the leave of the Court and must meet the statutory criteria, including evidence of the person’s circumstances, the interests engaged and the terms of the proposed Will. That jurisdiction operates prospectively for a living person and is not a route for admitting a document as an informal Will after death.

Procedure and Evidence in Section 9 Applications

An application to have a document admitted as an informal Will is made to the Supreme Court of Victoria. The affidavit evidence may address the document itself, the circumstances in which it was created, its provenance and authenticity, statements made by the deceased about the document, the position of persons whose interests are engaged, and the testamentary background. Where the material is electronic, evidence about the device, storage location, authorship, metadata and the absence of subsequent alteration may be important.

Notice, service and specific procedural requirements are governed by the Supreme Court (Administration and Probate) Rules 2023 (Vic) and the Court’s probate guidance, and depend on the facts. It is not always the case that every person whose interests may be affected must be personally served, nor is a fixed timetable prescribed by statute for these applications. Applications with contested facts take longer than uncontested applications. Costs are within the Court’s discretion under section 24 of the Supreme Court Act 1986 (Vic), applying the principles developed for probate proceedings.

Preservation of Electronic Evidence

Where informal electronic material is or may be relevant, preserving the material in its original state is important. That may involve securing devices and accounts, avoiding actions that alter timestamps or metadata, taking forensic images where warranted and documenting the chain of custody. What is required in a particular case depends on the evidence, the material and the position of interested parties, and legal advice should be obtained at the earliest practicable point.

Related Reading

For related topics see our articles on how to make a Will in Victoria, challenging testamentary capacity, undue influence and suspicious circumstances, statutory Wills and probate in Victoria.

Conclusion

The power in section 9 of the Wills Act 1997 (Vic) is a real jurisdiction and is capable of extending to electronic material. It is not, however, a substitute for the ordinary care of making, updating and safely storing a Will that complies with section 7 or the sections 8A to 8D remote execution regime. Where a person has died leaving only informal documents, or where existing documents raise capacity or influence concerns, legal advice should be obtained before dealing with the estate.

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