Information Centre · Wills & Estate Planning
Can a Text Message or Email Be a Valid Will in Victoria?
When the Supreme Court of Victoria will recognise an informal document — including a text message, email, draft note or computer file — as a valid will under section 9 of the Wills Act 1997 (Vic).
Every few years a case makes the news: a final text message found on the deceased's phone, an unsent draft email, a note typed in a smartphone notes app — and the Court is asked to decide whether it should be treated as a valid will. The answer is sometimes yes, sometimes no, and almost always expensive to litigate.
This article explains the law of informal wills in Victoria — what makes a will formally valid, the dispensing power in section 9 of the Wills Act 1997 (Vic), how the Court approaches text messages, emails and computer files, and why a properly drafted formal will remains the best protection for the testator and their family.
What Makes a Will Valid?
A formally valid will in Victoria must satisfy section 7 of the Wills Act 1997 (Vic):
- it must be in writing;
- it must be signed by the testator (or by someone at their direction in their presence);
- the testator's signature must be made or acknowledged in the presence of two witnesses present at the same time;
- each of those witnesses must sign the will in the testator's presence.
A document that meets these requirements is presumed valid (subject to issues such as capacity and undue influence). A document that does not meet them is presumptively invalid — but may still be admitted under the Court's dispensing power.
What Is an Informal Will?
Section 9 of the Wills Act 1997 (Vic) gives the Supreme Court the power to declare that a document forms a person's will even though it does not meet the formal requirements. The Court must be satisfied that the person intended the document to be their will, an alteration of their will, or a revocation of their will.
The Act defines "document" broadly. It includes anything on which there is writing, anything from which sounds, images or writings can be reproduced (with or without the aid of anything else) and anything on which information has been stored or recorded. That definition is wide enough to include modern electronic media — text messages, emails, voice notes and computer files.
Can an Email Be a Will?
Yes — in principle, and in a number of decided cases. The Court will examine the words used (do they purport to make testamentary dispositions?), the circumstances in which the email was created (was it composed in contemplation of death?), whether it was sent or saved as a draft, and the evidence about the deceased's intentions at the time. Emails to a lawyer giving will instructions are usually not informal wills — they are instructions for a will to be prepared. Emails addressed directly to beneficiaries announcing how the estate should be distributed are more likely to qualify.
Can a Text Message Be a Will?
Yes. Courts in Australia have admitted text messages — including unsent drafts found on the deceased's phone — as informal wills. The leading factors include:
- the wording of the message and whether it deals with the disposal of property on death;
- whether the message identifies an executor or beneficiaries;
- the deceased's circumstances at the time (proximity to death; presence of formal instructions);
- whether the message was saved, sent or simply left as a draft;
- the presence or absence of a formal will and any earlier statements of intention.
Can a Computer File Be a Will?
Yes. The Court has admitted documents prepared in word processors, notes apps and other software where the evidence shows the deceased intended the document to operate as their will. Metadata about when the file was created and last modified, and whether the document was printed or shared, often forms part of the evidence.
How Courts Determine Testamentary Intention
Testamentary intention is the central question. The Court looks at the language of the document, the circumstances of its creation and the context — including the deceased's relationships, financial position, prior statements and health. The Court is concerned with the deceased's actual intention at the time the document was made, not with their general intention to make a will at some future point.
An aspirational note ("I really must update my will") is not testamentary. A document that says "this is my will, I leave my house to X and my super to Y" is much closer. Cases in between are decided on their facts.
Evidence Commonly Used
- affidavits from family members and close friends about the deceased's intentions and statements;
- medical records establishing capacity at the relevant time;
- metadata showing when the document was created and last modified;
- evidence about whether earlier formal wills existed;
- device forensics confirming authorship and that the document was not later altered;
- evidence of how and where the document was stored.
Risks of Informal Wills
Even when admitted to probate, informal wills carry significant risks:
- delay — applications take longer than ordinary probate;
- cost — substantially higher legal fees and expert evidence;
- dispute — interested parties can and do contest both validity and content;
- uncertainty — the outcome is rarely as clear as a formally executed will;
- scope — informal wills often deal incompletely with the estate, leaving partial intestacy.
Where informal wills are admitted alongside or in substitution for earlier formal wills, a fresh round of dispute can follow. See our article on probate in Victoria for the broader procedural context.
Why Formal Wills Remain Best Practice
A properly drafted formal will, signed and witnessed in accordance with section 7 of the Wills Act, costs a small fraction of an informal will application. It is presumed valid, removes the central uncertainty about intention and allows the executor to apply for probate in the ordinary way. For most adults, the formal will is the foundation of any estate plan — alongside enduring powers of attorney and structures such as testamentary trusts. Our companion guide on why every Victorian adult needs a will sets out the broader case.
Conclusion
The dispensing power in section 9 of the Wills Act 1997 (Vic) is a valuable safety net, and modern courts apply it in the spirit of giving effect to a deceased's genuine testamentary wishes. But it is a remedy of last resort, not a substitute for proper estate planning. If you are wondering whether your text message or email might be enforceable, the better question is why you have not yet made a formal will — and the better answer is to make one now. Where someone has died leaving only informal documents, urgent legal advice should be obtained before the estate is dealt with; in some cases an application for Letters of Administration on intestacy will need to be considered in parallel.
Frequently Asked Questions
What makes a will formally valid in Victoria?
Under section 7 of the Wills Act 1997 (Vic) a formal will must be in writing, signed by the testator (or by someone in their presence and at their direction), and the signature must be made or acknowledged in the presence of two witnesses present at the same time who also sign in the testator's presence.
What is an informal will?
An informal will is a document that does not meet the formal execution requirements but which the Supreme Court of Victoria can declare to be a will under section 9 of the Wills Act 1997 (Vic) if the Court is satisfied the deceased intended it to operate as their will.
Can an email be a valid will?
Potentially yes. The Supreme Court has admitted emails to probate where the Court was satisfied the deceased intended the email to operate as a will. The result depends on the wording, the circumstances and the evidence of testamentary intention.
Can a text message be a valid will?
Yes, in principle. Australian courts have admitted unsent text messages and draft messages to probate where the evidence supported a finding that the deceased intended the message to be their final will. These cases are highly fact-specific.
What about a note on a computer or a file in the cloud?
A document stored on a computer, phone or in cloud storage can be an informal will. The Wills Act defines 'document' broadly to include electronic records. The Court will examine when the file was created, when it was last modified and whether it was finalised.
What does testamentary intention mean?
Testamentary intention is the intention that the document operate as the maker's will — that is, to dispose of property on death. An aspirational draft, a note of instructions to a lawyer or a record of preliminary thoughts is not enough.
Who can apply to have an informal will admitted?
Usually a person named as executor in the informal document or a beneficiary. The application is made to the Supreme Court of Victoria with supporting affidavits and is served on every person whose interests would be affected.
How long does an application take?
Informal will applications are slower and more expensive than ordinary probate applications. Several months is common, longer if the application is contested.
Are informal wills expensive to prove?
Yes. Because the Court is being asked to recognise a document that does not meet the formal requirements, evidence must be gathered and contested issues litigated. The costs are usually borne by the estate.
Is it safer to make a formal will?
Yes — by some margin. A properly drafted, signed and witnessed will costs a fraction of an informal will application and removes the need to argue about intention after death.
Wills & Estate Planning
Make a Proper Will — Not a Text Message.
Speak with our team about preparing a formally valid will, testamentary trust and the rest of your estate plan. It takes far less time and costs far less than an informal will application after death.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.