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1. On 19 July 2023, the late Ian Geoffrey Cornwell (the deceased) was in Vietnam. He had terminal cancer and very low chances of surviving a plane ride back to Australia from Vietnam. He instructed his solicitor back in Canberra to prepare a will, which she did. On 21 July 2023, the deceased then executed the document his solicitor had prepared in front of an attending nurse in Vietnam and his solicitor, via a video call. At the time of the video call, the solicitor was working remotely and located in Luskintyre, in the Hunter region in New South Wales. The deceased survived the plane trip home from Vietnam, but died in Canberra approximately a month later, on 28 August 2023. The application before the court seeks a declaration that the document the deceased signed in Vietnam constitutes his last will.

Relief sought

2. The application is brought pursuant to s 11A of the Wills Act 1968 (ACT) (Wills Act). The substance of the relief sought is an order (really a declaration) that, notwithstanding that the document signed by the deceased on 21 July 2023 (informal will) was not executed in accordance with the formal requirements of the Wills Act, the informal will nevertheless “constitutes the last will and testament of Ian Geoffrey Cornwell”.

3. The applicant is David Guy Cornwell, the deceased’s brother. He is the named executor in the informal will and was appointed as administrator ad litem on 2 February 2024.

Orders made

4. Following the hearing of the application on 21 March 2025, I made orders granting the substance of the application but reserving reasons (due to the number of matters in the applications list that day), which I now provide. The orders appear at the conclusion of these reasons.

Applicable law by which to assess the validity of the will

5. The solicitor who witnessed the deceased’s signature via a video call believed that she had complied with the formal requirements for executing a valid will because she was located in New South Wales and section 14G of the Electronic Transactions Act 2000 (NSW) (ET Act) applied to her. That section permits a solicitor to witness a document by audio visual link by following a prescribed procedure.

6. Section 14J(2) of the ET Act provides that if, “because of s 14I”, the place of execution is outside the jurisdiction of NSW, the laws of NSW are taken to apply in relation to the witnessing and execution of the document as if the place were in the NSW jurisdiction.

7. However, section 14I of the ET Act is fatal to the solicitor’s reliance on the ET Act provisions. It is in the following terms (emphasis added): 14I Signatory and witness may be outside jurisdiction A document may be witnessed under this Part even if the signatory or witness, or both, are outside this jurisdiction if— (a) the document is made, or required to be signed, under an Act or law of this jurisdiction, or (b) the governing laws for the document are the laws of this jurisdiction.

8. The emphasised words mean that the witnessing provisions of the ET Act are only applicable if the will itself was made under a law of the jurisdiction. Here, that would be the Succession Act 2006 (NSW) (Succession Act). Thus, the court must work out which law governs the requirements for formal validity of the document under consideration.

9. Relevant to that question is the domicile of the deceased. He was domiciled in the Territory, both at the time he executed the document overseas and at the time he died. At common law, the governing law for the will is that of the testator’s domicile, being the Territory: Miller v Miller [2000] NSWSC 767; 50 NSWLR 81 at [10]. This is not a case where there was any suggestion that the deceased had immovable property in NSW.

10. There is also a statutory general rule enabling assessment of formal validity. It is to be found in s 15C of the Wills Act, and the equivalent provision also appears in s 48 of the Succession Act. A will is taken to be properly executed if its execution conforms to the law in force in any one of a number of alternatives. Relevant to the present circumstances, the statute permits validity to be assessed by reference to the law in force in:

(a) the place where the will was made (in Vietnam); or

(b) the place of the testator’s domicile at the time the will was made, or at the time of death (the Territory).

11. The legislation provides for other possibilities, which are immaterial here. The short point is that none of those alternatives permits the governing law for validity of the will to be the place where one of the witnesses was located at the time. There is no basis to find that the informal will was made under a law of NSW. Accordingly, the ET Act does not apply in respect of persons witnessing that document.

12. While the Territory does have the Electronic Transactions Act 2001 (ACT), there is no equivalent provision that enables the witnessing of wills by electronic means. Formalities for making a valid will in the Territory

13. The formal requirements for making a valid will are set out in Part 2 of the Wills Act. The attestation provision is material for the present circumstances, where the lack of formality arises from the fact that the two witnesses were not “in the presence” of the testator and did not “subscribe the will in the presence of the testator”. Section 9 provides (emphasis added): 9 Will to be in writing and signed before 2 witnesses (1) Subject to this Act, a will is not valid unless— (a) it is in writing; and (b) it is signed at the foot or end by the testator, or by another person in the presence of and by the direction of the testator; and (c) the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and (d) 2 or more of those witnesses each attest that signing of the will or that acknowledgment of the signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses. (2) Subsection (1) shall not be taken to require any form of attestation on a will.

14. For completeness, in considering all alternatives in assessing validity (by reference to s 15C), there is a provision for the making of an international will (see Part 3B of the Wills Act). It is contained in the Annex to the Convention providing a Uniform Law on the Form of an International Will 1973, (sch 1 of the Wills Act). Article 1 provides: 1․ A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.

15. However, Article 4 then provides that two witnesses are required in addition to an “authorised person”, defined in s 16L of the Wills Act as an Australian legal practitioner or a public notary of any Australian jurisdiction. The circumstances here do not meet that requirement. Even if that hurdle were overcome, informality would still exist as art 5(3) of sch 1 also provides that the witnesses and the authorised person must attest the will “by signing in the presence of the testator.”

16. The above has been set out to explain that whatever path of assessing validity is followed, the document executed on 21 July 2023 did not comply with the necessary formal requirements. The court’s power to declare a will valid

17. The court has the power to order that a document constitutes the will of a deceased person, notwithstanding that it has not been executed in accordance with the required formalities under s 11A of the Wills Act. That section is in the following terms (emphasis added): 11A Validity of will etc not executed with required formalities (1) A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively. (2) In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to- (a) any evidence relating to the manner of execution of the document; or (b) any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.

18. The material task for the court is seen in the emphasised words of the section.

Applicable principles

19. The authorities relevant to the interpretation of s 11A of the Wills Act have recently been discussed in In the Estate of Gallagher [2022] ACTSC 324 at [11]-[17]. They include the test as phrased by Gallop J in Re Letcher (deceased) (1993) 114 FLR 397 at 401, reformulated to follow the more recent decisions of Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] and Rodny v Weisbord [2020] NSWCA 22; 102 NSWLR 403 at [17]- [18]. The reformulation was discussed in detail in In the estate of Niko Ojvan [2023] ACTSC 42 at [9]-[15]. The circumstances of the present case make it unnecessary to repeat the discussion here.

20. For the present case, it suffices to explain that the task for the court may be broken down into satisfaction of three separate components. The first component deals with establishing that there is a physical thing that falls within the definition of ‘document’. The second deals with the contents of the subject document. The third deals with the person’s intention with respect to the legal effect of the subject document. In determining whether it is satisfied that the document is one that the deceased person intended to constitute his or her will, the court asks the following questions: (a) Is there a document? (b) Does the document purport to embody testamentary intentions of a deceased person? (c) Is the evidence which has been tendered such as to satisfy this court that at the time of the document being brought into existence or at some later time, the deceased person, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?

21. Those three questions form the issues for this application. Issue 1: Is there a document?

22. ‘Document’ is not defined in the Wills Act, however, the typed document under consideration here squarely falls within the definition set out in the Dictionary of the Legislation Act 2001 (ACT). The document bears the heading “Last Will & Testament of Ian Geoffrey Cornwell”. The original was sighted by the court during the hearing and accompanies the probate file. Issue 2: Does the document purport to embody the deceased’s testamentary intentions?

23. In addition to the heading, which makes clear the purpose of the document, the document commences: THIS IS THE LAST WILL AND TESTAMENT of me IAN GEOFFREY CORNWELL of [address] in the …Australian Capital Territory.

24. The document proceeds to outline the appointment of the executor of the will, the beneficiaries under the will and to make provision for the residue of the estate. The document also gives specific powers to the executors.

25. The document is unquestionably one that purports to embody the deceased’s testamentary intentions. Issue 3: Does the evidence establish that, at the time the document was brought into existence, the deceased person intended the document to constitute his will?

26. As seen from s 11A(2) of the Wills Act, the court may consider evidence of the circumstances surrounding the manner of the document’s execution. That was provided primarily by affidavits from two solicitors, one of whom prepared the document under consideration. She deposes to the following: (a) A conversation with the deceased on 19 July 2023, where he said “I am sick and I don’t know if I will make it home to Australia. I want to make sure I have a will.” (b) She made the video call to Vietnam on 21 July 2023. On that day, she observed the deceased. She was instructed by the deceased to “electronically witness his will.” (c) During the video call, the deceased communicated an intention to execute a new will if he survived the trip back from Vietnam, which the solicitor could observe him sign in person.

27. That the deceased envisaged signing a further will in due course, even at the time that he was executing the document in Vietnam, does not mean that the document signed on 21 July 2023 was a draft. On the contrary, the deceased’s conduct in engaging the solicitor on short notice, executing the document in the presence of the nurse, and having his solicitor participate via the video call together indicate the finality of the testamentary intentions recorded. I am satisfied that on 21 July 2023, the deceased intended the document he signed in Vietnam in contemplation of his death to constitute his last will.

28. Further support for that conclusion is provided by the principal solicitor of the law firm involved in the preparation of the deceased’s will. She deposes to attending upon the deceased in hospital in Canberra upon his return from Vietnam. She had a conversation with the deceased and with the first solicitor, the latter of whom participated in their discussions through the use of a mobile phone which was in the room with the deceased, located close to his chest and on speaker setting. The principal solicitor heard the deceased confirm that he remembered doing a will “about 2 weeks ago” and that he did this overseas.

29. The third item of evidence relevant to the deceased’s intention at the time he signed the will was a conversation that occurred between the deceased and his brother (the applicant) when the deceased was in hospital under palliative care and shortly before the deceased died. In that conversation, the deceased expressed happiness that he was able to financially support his nieces and nephews through his will. The applicant knew of no other will that the deceased had prepared (which is consistent with the deceased’s initial instructions to the solicitor when he engaged her from Vietnam) and the inference is that the deceased was referring to the informal will.

30. These matters confirm the deceased’s clear intention that the document he signed in Vietnam constituted his last will at the time he signed it. For completeness, the affidavit evidence before the court also refers to the deceased seeking to make changes to the will after he returned from Vietnam, and to the fact that the deceased lost capacity prior to executing those changes. However, such evidence did not provide any foundation for a suggestion that the deceased viewed the document he had previously signed in Vietnam as a draft.

Conclusion and Orders

31. For the above reasons, I was satisfied that at the time the deceased signed the document on 21 July 2023, he intended it to constitute his will. Accordingly, the following orders were made: (1) Pursuant to s 11A of the Wills Act 1968 (ACT), the court declares that the document dated 21 July 2023 and bearing the signature of the late Ian Geoffrey Cornwell, the original of which has been produced to the court, constitutes the Will of the late Ian Geoffrey Cornwell (Will). (2) The Registrar is directed to do all things and take all steps necessary to grant probate of the Will of the deceased to David Guy Cornwell. (3) The costs of the application are to be paid out of the estate on a solicitor-client basis.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: