In the estate of Johann Elizabeth Miller [2026] ACTSC 276, Johann Elizabeth Miller died on 6 January 2023, aged 70. The deceased had two children: Leanne Jane Randall (the applicant) and Darren, who predeceased her and was survived by three children: Tayla, April, and Jack-Joseph (the first, second, and third defendants).
If a valid Will is found after letters of administration are granted, the court usually revokes it before granting Probate or Letters of Administration with the Will annexed.
Court Revocation: The administrator must apply to the Supreme Court to revoke the current grant.
New Grant Application: The will’s executor or an interested person must apply for a Grant of Probate or Letters of Administration with the Will Annexed.
Halting Distribution: Asset distribution under intestacy rules must stop immediately.
Transfer of Duties: The previous administrator must transfer estate records and assets to the new executor or administrator.
In the estate of Venu Krishnamurthy [2024] ACTSC 73, McCallum CJ considered the effect of discovering a valid Will after administration had commenced based on intestacy. The deceased was initially believed to have died intestate, and the Court granted Letters of Administration accordingly.
After administration was granted, the deceased’s brother located the original Will. The Court revoked the initial grant to allow administration in accordance with the Will. This illustrates the Court’s power to revoke a grant of administration when new facts arise.
Practitioners who identify a Will after a grant should promptly notify theCourtt and all interested parties. The following stepwise process helps ensure procedural compliance:
- 1. Notify the Court in writing of the discovery of a new Will, explaining its significance and concern in the administration of the deceased estate.
- 2. Inform all potential beneficiaries and interested parties about the existence of the Will and the intention to seek revocation of the current grant.
- 3. Prepare a formal application to revoke the existing grant of administration, identifying the relevant proceeding.
- 4. Support the application with an affidavit detailing the circumstances in which the Will was discovered, its contents, and its relevance to the estate.
- 5. File the application and supporting affidavit with the Court, providing copies to all interested parties.
- 6. Await directions from the Court concerning the hearing and any further evidence required.
Following these steps ensures the matter is properly brought before the Court and that all parties are given appropriate notice of the change in circumstances.
The Court has a discretionary power to revoke a grant of representation under r 3082 of the Court Procedures Rules 2006 (ACT) (the Rules). Rule 3081 Revocation of grant—application provides who may apply and the process for seeking revocation of the grant:
(1) This rule applies if, after probate of a Will or administration of an estate has been granted—
(a) a person interested in the estate wants the grant revoked; or
(b) the personal representative wants to retire from the administration.
(2) The person must apply in the proceeding in which the grant of representation was made for an order to revoke the grant.
(3) An application must be supported by an affidavit setting out the facts relied on and the grounds on which the order is sought.
The applicant, as an interested person and nominated personal representative, had standing to apply for revocation. Her affidavit detailed the relevant facts. The Court had previously exercised its power to revoke grants under r 3082 in similar circumstances, including in the estate of Venu Krishnamurthy [2024] ACTSC 73.
The Court retains broad discretion to revoke a grant of administration where appropriate. Discovery of a valid Will after a grant based on intestacy provides grounds for revocation. The applicant submitted that these circumstances were present in this case.
The Estate of Cornwell[2025] ACTSC 118
In July 2023, Ian Geoffrey Cornwell was terminally ill in Vietnam and uncertain if he would survive the return to Australia. On 19 July 2023, he instructed his Canberra solicitor to prepare a Will.
Cornwell executed the Will in Vietnam on 21 July 2023. A nurse witnessed the execution in person. His solicitor, located in New South Wales, witnessed by video link. Cornwell later returned to Canberra and died on 28 August 2023.
His brother, David Guy Cornwell, named as executor, applied for a declaration under s 11A of the Wills Act 1968 (ACT) that the document constituted Cornwell’s last Will despite defective execution.
Why the Will was not formally valid?
Practitioners involved in remote witnessing determine which jurisdiction’s law governs execution and ensure compliance with the relevant statutory requirements. In determining the governing law, practitioners consider factors including:
- the Will maker’s domicile,
- the place where the Will is executed, and
- any applicable statutory provisions that reference which law applies (for example, s 15C of the Wills Act 1968 (ACT)).
A particularly important assessment where parties are located in different states or territories, to avoid errors in applying the correct formalities. Cornwell’s solicitor considered the Will validly witnessed under the Electronic Transactions Act 2000 (NSW) remote-witnessing provisions, relying on her physical presence in New South Wales.
McWilliam J rejected that approach. The NSW electronic witnessing provisions did not apply merely because a witness happened to be located in NSW. Under s 14I, those provisions could apply only where the deceased made the document under NSW law or NSW law governed the document.
Cornwell was domiciled in the ACT when he executed the Will and when he died. At common law, the relevant law was therefore that of his domicile. Section 15C of the Wills Act 1968 also permitted formal validity to be determined by reference, relevantly, to the law of Vietnam, where the deceased made the Will, or the ACT, where Cornwell was domiciled.
Section 15C of the Act did not permit validity to be determined according to the law of the place where a document is witnessed. The New South Wales remote witnessing provision wasn’t applicable simply because the solicitor was present in New South Wales. The Will did not comply with the formal execution requirements provided in s 9 of the Wills Act. The witnesses were not physically present with the testator. The document also did not meet the requirements for an international Will.
Section 11A — informal wills
The Court nevertheless had power under s 11A of the Wills Act 1968 (ACT) to declare the document to be Cromwell’s Will if satisfied that Cromwell intended the document to operate as a Will despite the failure to comply with the statutory formalities.
Drawing upon Hatsatouris v Hatsatouris, Rodny v Weisbord and the ACT authorities, McWilliam J expressed the inquiry through three questions:
- Was there a document?
- Did the document purport to embody thedeceased’ss testamentary intentions?
- Did the evidence establish that the deceased intended the document, without anything further being required on his part, to operate as his Will?
The first two requirements were satisfied. The signed document was headed:
“Last Will & Testament of Ian Geoffrey Cornwell”
It included standard testamentary provisions:
- appointment of an executor,
- gifts to beneficiaries,
- disposition of residue, and
- executor powers.
The critical issue was whether the document reflected the Will maker’s testamentary intention at the relevant time.
Evidence of testamentary intention
The evidence established that Cornwell intended the document to operate as his Will with immediate effect including
- instructions to his solicitor,
- contemporaneous written communications,
- the nurse’s witness statement, and
- subsequent statements to his brother and
- another solicitor confirming the Will’s existence and purpose.
Taken together, this evidence supported a finding of testamentary intention.
On 19 July 2023, Cornwell informed his solicitor of his illness and desire to ensure he had a Will.
On 21 July, he participated in a video conference, signed the document before a nurse, and involved his solicitor.
Cornwell’s subsequent consideration of making another Will after returning to Australia did not render the Vietnam document a draft.
The urgency of his instructions, execution before a nurse, and solicitor’s participation by video link indicated an intention for the document to have immediate effect.
Subsequent evidence supported this conclusion. After returning to Canberra, Cornwell told another solicitor that he had made a Will overseas about two weeks earlier. Shortly before his death, he told his brother that his Will would provide for his nieces and nephews.
Cornwell later considered changing his Will but lost testamentary capacity before doing so, which did not affect the status of the existing document. The proposed changes were consistent with the existing document being his operative Will.
McWilliam J declared under s 11A of the Wills Act 1968 (ACT) that the document constituted Cornwell’s last Will and directed that probate be granted to his brother. Ordering that the costs of the application be paid from the estate on a solicitor-client basis.
The Estate of Cornwell illustrates two key principles relevant to informal wills and remote witnessing.
First, the physical location of a remote witness does not, by itself, determine the law governing the formal validity of a Will.
A solicitor located in NSW cannot bring an otherwise foreign or interstate Will within NSW’s electronic witnessing regime simply by witnessing execution from NSW by video link.
Secondly, failure to comply with formal execution requirements does not necessarily invalidate thedeceased’ss testamentary intentions.
Under s 11A, the key question is whether the evidence establishes that the deceased intended the particular document, without further action, to operate as their Will.
A testator’s contemplation of later replacing or amending a document does not necessarily render it a draft. The relevant question is whether the testator intended the existing document to have immediate testamentary effect.
Background and dispute
In the estate of Johann Elizabeth Miller [2026] ACTSC 276, Johann Elizabeth Miller ( the deceased) died on 6 January 2023, aged 70. The deceased had two children: Leanne Jane Randall (the applicant) and Darren, who predeceased her and was survived by three children: Tayla, April, and Jack-Joseph (the first, second, and third defendants).
After the deceased’s death, the applicant sought letters of administration based on intestacy. The registry granted administration on 6 November 2024. The estate was valued at approximately $965,000. The applicant mistakenly believed that, because Darren had predeceased the deceased, they were the sole beneficiary of the estate.
The applicant later obtained legal advice and sought to revoke the grant. Submitting that, under s 11A of the Wills Act 1968 (ACT), a two-page handwritten document dated 18 September 2013 should be recognised as the deceased’s informal Will, and seeking probate of that document.
The first, second and third defendants opposed the application. If the document dated 18 September 2013 was not admitted to probate, the parties accepted that intestacy would result in the applicant receiving half of the estate, with the defendants sharing the remaining half equally.
The disputed document was handwritten in blue and black ink and showed variations in handwriting size. The defendants submitted that this indicated the deceased completed the document at different times. Muller J considered that proposition speculative. The use of different pens could have resulted from various circumstances and, without further evidence, no reliable inference could be drawn.
The central issue was not only whether the deceased had written the document, but whether they intended it to operate as a Will.
Applicable test
Drawing on The Estate of Cornwell [2025] ACTSC 118, his honour identified three questions to determine whether an informal document should be recognised as a Will:
- Is there a document?
- Does it purport to embody thedeceased’ss testamentary intentions?
- Has it been established that, at the creation of the document or at some later time, the deceased demonstrated by words or conduct an intention that the document should, without anything further being required, operate as their Will?
Muller J also had power under rr 3081–3082 of the Court Procedures Rules 2006 (ACT) to revoke the earlier grant of administration. If the applicant established the 2013 document was the deceased’s valid Will, that would provide an appropriate basis for revocation.
The applicant’s failure to disclose the document
A significant issue for the applicant was their conduct between the deceased’s death and the commencement of proceedings.
The applicant said they found the 2013 document on 7 February 2023. Nevertheless, the subsequent application for administration, stated that the applicant was unaware of any document purporting to contain the deceased’s testamentary intentions.
The applicant explained that they did not understand the legal significance of the handwritten document. They believed that a valid Will required a formal document prepared by solicitors and did not appreciate that the 2013 document could be admitted as an informal Will.
Muller J found significant aspects of the applicant’s evidence unsatisfactory.
The applicant claimed the deceased told them shortly before death that the handwritten note was to be used as a Will and that the house would pass to the applicant. Initially, they placed this conversation on 5 January 2023. Still, they later changed the date to 4 January after reading evidence from the third defendant, who indicated the deceased was significantly less lucid by 5 January.
Muller J considered it more likely that the applicant changed the date to align the account with the first defendant’s evidence.
Communications with the first defendant
The applicant’s dealings with the first defendant also raised issues.
Immediately after the deceased’s death, the applicant told the first defendant there was a Will and that they were the executor, despite not having located a formal Will. After finding the 2013 document, the applicant continued to give the impression that
- a Will existed,
- they were the executor, and
- a solicitor would contact the beneficiaries.
Muller J found these communications misleading. The 2013 document did not appoint the applicant as executor and the applicant did not consider it a valid Will.
In October 2025, the applicant wrote to the first defendant stating that no Will had been found and asserting that, as the deceased’s only surviving child, the applicant alone was entitled to the estate.
That position was legally incorrect. Under the ACT intestacy provisions, the deceased’s grandchildren were entitled to take their deceased father’s share of the estate.
Why reliance on the document emerged
The chronology of events was particularly significant.
Until early October 2025, the applicant maintained that the deceased had left no Will and that they were entitled to the whole estate. On 13 October 2025, solicitors for the defendants informed the applicant that, under s 49B(c) of the Administration and Probate Act 1929 (ACT), half of the deceased intestate estate was required to pass to the defendants.
The applicant sought to rely on the 2013 handwritten document as the deceased’s Will only after receiving that advice.
Muller J accepted that the applicant genuinely believed they should receive the entire estate. However, his Honour did not accept that, before October 2025, the applicant believed the 2013 document was the deceased’s Will or intended it to operate as such. Muller J considered it highly unlikely that the applicant would have submitted that no Will existed or failed to mention the document when consulting a lawyer about the estate.
Was there a “document”?
Yes. The handwritten pages plainly constituted a “document” for the relevant legislation. The absence of a heading describing it as a Will, or the fact that the deceased had handwritten it, did not prevent it from satisfying this preliminary requirement.
Did it embody testamentary intentions?
Muller J was not satisfied that it did.
Although the document referred to the applicant receiving the deceased’s house and included language suggesting a final decision, it was otherwise incomplete. Other portions resembled a checklist of matters the deceased still intended to address.
The document was not headed or otherwise identified as a Will and, viewed in its entirety, did not have the character of a document intended to dispose of the deceased estate on death.
Muller J therefore was not satisfied, on the balance of probabilities, that its words demonstrated that it embodied the deceased’s testamentary intentions.
Did the deceased intend the document to operate as a Will?
Even if the document had contained testamentary intentions, Muller J would have rejected the application because the evidence did not establish that the deceased intended the document itself, without further action, to have legal effect as a Will.
Muller J applied the distinction explained in Rodny v Weisbord [2020] NSWCA 22 between a document that merely records what a person wants to happen to their property after death and a document intended actually to cause that disposition by operating as a Will.
The incomplete nature of the deceased’s document suggested it recorded a settled view concerning the deceased’s house while identifying other estate matters that remained unresolved.
Once Muller J rejected the applicant’s evidence about an alleged conversations with the deceased, there was insufficient independent evidence to demonstrate that the deceased intended the document to operate as a Will. The application failed.
The applicant did not establish that the 2013 handwritten document was the deceased’s informal Will. There was no basis for revoking the existing grant of letters of administration, which remained in force.
Costs
By agreement, the applicant receives 50 per cent, and the three defendants share the remaining 50 per cent. Muller J’s preliminary view was that costs might be paid from the estate, although the three defendants argued that the applicant’s share should bear the costs because the application had failed. In unsuccessful informal Will applications, courts commonly consider whether the applicant’s share of the estate should bear the costs, particularly where conduct has contributed to unnecessary litigation.
Unsuccessful claims to admit informal wills can expose clients to adverse costs orders, including the possibility of having their interest in the estate reduced by their own costs or those of the other parties. The Court considered that argument had some force, particularly as the defendant did not learn of the grant of administration until October 2025, and the applicant commenced proceedings about a month later without substantial prior engagement.
Minimising clients’ exposure to adverse costs in informal Will applications,
encouraging early disclosure of any testamentary documents to all interested parties and the Court.
Clear and proactive communication with beneficiaries and potential parties can help avoid misunderstandings and reduce the risk of disputes escalating.
Engaging with other parties before commencing litigation, and exploring the possibility of agreement or mediation, may resolve issues more efficiently and prevent unnecessary costs.
Careful record-keeping of all relevant correspondence and advice may also assist in demonstrating good faith and reasonable conduct should costs be in dispute.
Muller J dismissed the application, reserved costs, and directed the parties to provide written submissions of no more than three pages concerning costs and any ancillary orders by 11 August 2026. The Court Will determine these matters on the papers by 11 August 2026.
The decision confirms that an informal document does not become a Will simply because it records wishes about property after death. The evidence must establish that the deceased intended the particular document, without further action, to operate with legal effect as their Will.
Advising clients preparing informal testamentary documents to state their intentions clearly and unambiguously, and to ensure the document expresses their wishes in a manner that leaves no doubt as to its intended legal effect. Drafting to avoid language or circumstances suggesting the document is provisional, incomplete, or part of a plan to prepare a future Will, as ambiguity may prevent a Court from finding the necessary testamentary intention. Clear communication about the document’s purpose and ensuring the client understands the importance of expressing finality and intention for immediate effect may improve the prospects of an informal Will being upheld.
By way of practical guidance, practitioners can suggest language such as:
“This is my last Will and Testament. I revoke all previous Wills and appoint Executor’ss Name] as my executor. I give my house at [address] to [Beneficiary], and the residue of my estate to [other Beneficiaries]. I intend that this document operate as my Will immediately without any further action required by me”.
Inclusion of such express wording can help demonstrate that the testator intended the document to have full legal effect as a Will.
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