Original will with only 1 witness

Original will with only 1 witness

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  • Cassey
    Cassey May 6, 2025 at 12:59 am

    I have to get probate for my brother’s estate. I found a will which look original but it has only one witness. Is this going to be a problem?

    Thanks,
    Cassey

    MV
    MV May 6, 2025 at 1:00 am

    Hi Cassey.
    If you have a will with only 1 signature by a witness, then the will does not meet the legal requirements to be a valid will. It is called an “informal will”.
    If there is a valid will, then the process is to apply for probate of the will.
    If there is an informal will, then the process is to apply for Letters of Administration with the will annexed.
    For the Court to accept the informal will they must be satisfied that the document was intended by the deceased to be their will. The obligation of the applicant to meet this requirement varies from state to state. In NSW, in addition to the application for Letters of Administration with the Will Annexed, the applicant must seek a declaration by the Court under Section 8 of the Succession Act that the informal will constituted the last will of the deceased.
    You will also have to disclose any previous wills that the deceased had.
    If there is no previous will, then you will have to state who would be affected if the informal will was not accepted by the Court. This would then fall to the rules on intestacy and who would, otherwise, be entitled to share in the estate. If there are such persons, they will need to provide a written Consent to Administration to the applicant.
    Please search your brother’s personal documents and see if you can find a previous will.
    The problem can be solved.
    I hope this is helpful.
    Kind regards,

    AussieLegal Moderator

    Cassey
    Cassey May 20, 2025 at 12:42 am

    Thanks MV!

    I am in Victoria. I cannot find any older will signed by my brother. What do the rules of intestacy say about the estate?

    Cassey.

    MV
    MV May 26, 2025 at 1:06 am

    Hi Cassey,

    The rules of intestacy for Victoria (Administration and Probate Act 1958) say that this is how an estate is to be distributed if there is no will:
    A. If there are no children but a surviving spouse OR domestic partner, then the whole of the
    estate will pass to the spouse or the domestic partner.

    B. When there are no children but a surviving spouse AND domestic partner, then their
    respective shares will depend on a distribution agreement under s.70ZE or an order made by
    the Court. This is outside the scope of the information provided in this document.

    C. If the deceased had a surviving spouse and children of that relationship, the spouse would
    receive the entire estate.

    Kind regards,

    D. If the deceased had a surviving spouse and children NOT of that relationship the spouse
    would receive the personal chattels (meaning furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments,
    wines and food but not money, stocks or shares or anything used for business purposes);
    AND
    100% of the estate if the estate is valued at less than $451,909 (indexed to CPI); or
    If the estate is greater than $451,909, then the spouse receives $451,909 plus interest plus
    50% of the balance; and
    The children of a previous relationship receive 50% of the balance in equal shares.

    F. If the deceased left children but no surviving spouse or domestic partner, the children would
    inherit. If a child had died, their share would go to their children (the grandchildren).

    G. If the deceased left no children, spouse or domestic partner, family members would inherit in
    the following order:
    • Parents (if only one surviving parent, that parent would inherit the entire estate)
    • Siblings – brothers and sisters (either whole or half blood)
    • Nieces and nephews
    • Grandparents
    • Uncles and Aunts
    • Cousins
    The estate does not pass to the government unless there are no living relatives.

    AussieLegal Moderator

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