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, must be signed by the testator or by another person in the presence of and at the direction of the testator, and the testator’s signature must be made or acknowledged in the presence of at least two witnesses present at the same time. At least two of those witnesses must sign the Will in the testator’s presence. Related provisions govern who may witness and the intention with which the testator signs.

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, on that account alone, a Will — but it may still be admitted under section 9 if the criteria for the dispensing power are met.

Remote Execution — Sections 8A to 8D

The Wills Act contains a remote execution regime in sections 8A to 8D that permits a Will to be executed with witnesses appearing by audio-visual link, subject to the procedures and duties set out in those sections. Remote execution is a substitute for physical presence of witnesses. It is not a substitute for the section 7 requirements as a whole, does not remove the need for a signed writing, and depends on compliance with the procedure and the duties that the sections impose on those participating in the execution.

Whether remote execution is available and appropriate in a particular case depends on the facts and on the current text of sections 8A to 8D. The regime is separate from section 9 and does not affect the section 9 dispensing power.

The Section 9 Dispensing Power

Section 9 empowers the Supreme Court of Victoria to declare that a document, or part of a document, forms a person’s Will, an alteration to a Will, or a revocation of a Will, despite non-compliance with the formal requirements. The Court must be satisfied that the person intended the document to be their Will, alteration or revocation. The provision expressly permits the Court to consider evidence about how the document came into being and any statements made by the deceased.

The word “document” is defined broadly and is capable of extending to electronic material — emails, text messages, notes typed into a phone, files stored on a computer or in cloud storage, and audio-visual recordings. The definition is broad because Parliament intended the dispensing power to reach modern forms of communication; it is not a signal that any electronic material can be presumed to be a Will. The question is always testamentary intention on the evidence.

Section 9(5) confers a limited power on the Registrar of Probates in prescribed circumstances. The Registrar’s role does not displace the Court’s jurisdiction and depends on the current terms of the provision and the associated Rules.

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 facts. Format alone does not establish or defeat intention.

Capacity, Knowledge and Approval, Undue Influence and Fraud

Admission under section 9 addresses only whether a document embodies testamentary intentions. 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 that a document embodies testamentary intention 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. Alternatively, an informal document may be admitted as an alteration or as a partial revocation. The result depends on the terms of the informal document and the evidence, considered against the general law of revocation in section 12 of the Wills Act and the associated principles.

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 current Rules 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.

Standing, notice, service, and specific procedural requirements are governed by the current Supreme Court Rules 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 the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2025 (Vic), with the usual principles applying to 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 and probate in Victoria.

Conclusion

The dispensing 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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