On 4 September 2026, the Supreme Court of Victoria admitted an informal Will into Probate in the case of Re the Estate of Gigliotti [2026] VSC 550. The Will had been handwritten by the deceased’s sister, witnessed by only one person and signed just three days before the Will maker died.
This case highlights the importance of a good estate plan and how leaving a Will to the last minute can lead to costly and lengthy litigation.
What happened?
The Will maker died aged 51 from metastatic oesophageal cancer. He had no children but was survived by his de facto partner.
In 2022, the deceased engaged a solicitor and made a formal Will leaving his entire estate to his first cousin. It was noted at the time that he intended to return to the Solicitor and make a further Will at a later date, however, this did not occur.
Three days before his death, while an inpatient in hospital, the deceased signed a handwritten document prepared by his sister. It was signed by the deceased and witnessed only by his sister’s partner. The document divided his estate between several people, including his sister, his cousin, his de facto partner and other family members and friends.
Because it had only one witness, the document did not meet the formality requirements for a Will under the Wills Act 1997 (Victoria).
After his death, the cousin, who was the sole beneficiary under the 2022 Will, argued that the handwritten document was not valid and should not be admitted to Probate.
The question before the Court was whether the handwritten document should be admitted to Probate as an informal Will, or whether the earlier formal Will should be relied on as the last Will of the deceased.
What the Court decided
Section 9 of the Wills Act 1997 (Victoria) allows the Court to admit a document into Probate even if it does not meet the formal requirements, provided that the Court is satisfied the deceased intended it to be their Will.
The Court heard evidence from the deceased’s partner, his sister, her partner and her child, and found their accounts credible. Despite the unusual circumstances in which the Will was made, the Court considered the risk arising from them to be modest.
On the issue of capacity, the cousin relied on medical expert evidence. The Court found this evidence could not establish that the deceased lacked capacity when he signed the document and gave more weight to the evidence of the family members who were present.
Ultimately, the Court was satisfied that the handwritten document reflected the deceased’s wishes. It was admitted to Probate, displacing the 2022 Will.
Why this case serves as a reminder of the importance of a good estate plan
The handwritten Will was ultimately upheld and admitted to probate, but only after a contested Court hearing. The outcome was never guaranteed, and it came at a cost, both financial and emotional. The case is a timely reminder of the importance of having a proper estate plan in place, for the following reasons:
- Litigation and legal costs: Instead of a straightforward Probate application, the estate was drawn into a dispute requiring evidence from multiple family members and medical experts. Costs in these cases are often significant and can greatly reduce what is left for beneficiaries.
- Delay: The deceased died in June 2023 and the Court’s decision was handed down in September 2026. Beneficiaries waited more than three years for a final decision.
- Family conflict: Disputes over a Will often damage relationships between the people left behind, at a time when they are already grieving.
- Capacity questions: A Will signed close to death, particularly while unwell, invites challenges about whether the will-maker understood what they were signing. A lawyer can take steps at the time to record the person’s capacity and reduce that risk.
The Court’s power to admit an informal Will into Probate is a safety net, not a substitute for proper estate planning. Relying on the Court’s power also means relying on a Judge to piece together your wishes after you are gone, and their interpretation may not always properly reflect what your true intentions were.
How to protect your wishes
The best way to avoid a dispute like this is to put a professionally prepared Will in place and keep it up to date as your circumstances change. At iWills Legal, we recommend that you:
- Review your Will regularly, especially after major life events such as a new relationship, a separation, a death in the family or a serious diagnosis.
- Act early: If your wishes change, update your Will while you are well, rather than leaving it until the last moment.
- Seek advice if time is short: Even in urgent situations, such as a hospital stay, a lawyer can often attend to make sure a new Will is properly signed, witnessed and supported by evidence of capacity.
- Do not rely on a homemade document: A Will you or a family member writes, may seem clear to you, but small errors can leave it open to challenge.
If you would like to make or review your Will, or you are dealing with an estate where the validity of a Will is in question, contact our friendly team at iWills Legal for advice.