The recent Victorian Supreme Court decision in Re the Estate of Gigliotti [2026] VSC 550 highlights both the flexibility of the law in giving effect to a person's final wishes, and the significant risks that can arise when estate planning is left until the final stages of life.

While the Court ultimately upheld an informal handwritten will made only days before the deceased's death, the case serves as a reminder that relying on the Court's ability to remedy defects in execution can result in costly, time-consuming and emotionally draining litigation.

The case serves as a timely reminder that effective estate planning is about more than achieving a favourable legal outcome. It highlights the importance of:

• planning early rather than reacting to changing circumstances;
• keeping testamentary documents up to date;
• documenting capacity and intentions clearly;
• obtaining independent professional advice; and
• minimising the risk of disputes, uncertainty and unnecessary litigation for loved ones.

The last-minute estate plan

The deceased died at the age of 51 from metastatic oesophageal cancer, leaving an estate worth approximately $4.1 million.

He had previously made a formal will in 2022 under which his cousin was the sole beneficiary. The evidence before the Court indicated that this will was intended to operate as a temporary or "stop-gap" measure, with the deceased intending to return to his solicitor to prepare a more considered estate plan.

Three days before his death, however, the deceased signed a handwritten document which substantially altered the distribution of his estate.

The document was written by the deceased's sister, signed by the deceased and witnessed by the sister's partner. It distributed the estate amongst a number of beneficiaries, including the deceased's cousin, sister, de facto partner, family members and friends. Importantly, the document was not executed in accordance with the usual formal requirements applicable to wills, having been witnessed by only one witness.

Following the deceased's death, a dispute arose as to whether the handwritten document should be admitted to probate as an informal will or whether the earlier formal will should prevail.

The legal basis for the decision

The Court admitted the handwritten document to probate under the dispensing provisions of the Wills Act 1997 (Vic).

In doing so, the Court was satisfied that:

• the document recorded the deceased's testamentary intentions;
• the deceased intended the document itself to operate as his final will; and
• the deceased had testamentary capacity when he gave instructions and signed the document.

The Court also accepted that the document was intended to have immediate testamentary effect and was not merely a note of instructions for a future solicitor-prepared will.

The decision demonstrates the operation of section 9 of the Wills Act 1997 (Vic), which allows the Court to dispense with strict compliance with the usual execution requirements where satisfied that a document was intended to operate as a will.

Without that provision, the deceased's final wishes may have failed because of what was, in practical terms, a relatively technical defect. However, the case also illustrates why the formal requirements for wills exist in the first place. Proper execution reduces uncertainty and provides powerful evidence of testamentary intention, capacity and authenticity. Once a willmaker has died, those issues often become significantly more difficult and expensive to prove.

The capacity dispute

One of the most interesting aspects of the case was the dispute concerning testamentary capacity.

The Court was presented with competing retrospective reports from two oncologists. One expert concluded that the deceased retained testamentary capacity at the relevant time, while the other concluded that he did not.

Significantly, neither expert had personally examined the deceased. Both were required to reconstruct his condition after his death using medical records and other available evidence.

Ultimately, the Court preferred the opinion that better aligned with both the contemporaneous medical records and the evidence of those who interacted directly with the deceased in the days leading up to his death. The Court accepted evidence that the deceased appeared coherent, gave detailed instructions regarding the distribution of his estate and understood the significance of the document he was signing.

The decision provides an important reminder that expert evidence, while often highly influential, is only one part of the evidentiary picture. In cases involving retrospective assessments of capacity, courts frequently place considerable weight on contemporaneous evidence, including medical records and the observations of family members, carers, friends and professional advisers who had direct interactions with the deceased at the relevant time.

Perhaps the most significant lesson from the capacity dispute is that once a willmaker has died, questions of intention and capacity must be reconstructed from whatever evidence remains. In Gigliotti, that exercise required the Court to weigh competing expert opinions against contemporaneous medical records and the recollections of witnesses. The case demonstrates the importance of creating clear records while a person is alive, particularly where illness, medication or cognitive decline may later become an issue.

A costly lesson in delayed estate planning

Although the informal will was ultimately upheld, the estate became embroiled in contested Supreme Court proceedings involving:

• competing medico-legal expert reports;
• detailed medical records;
• evidence from multiple family members and witnesses;
• legal argument concerning testamentary intention and testamentary capacity; and
• the delay and expense associated with contested probate litigation.

The proceeding required the parties to obtain expert evidence, prepare detailed witness material and participate in contested court proceedings. While the judgment does not quantify the legal costs incurred, disputes of this nature can involve substantial expense and can significantly delay the administration of an estate.

The financial cost, however, is only part of the story.

Cases such as this require family members to revisit and litigate events occurring during the final days of a loved one's life. Witnesses must provide statements, be cross-examined and have their recollections scrutinised. Relationships can become strained and the administration of the estate can be delayed while uncertainty remains about who is entitled to inherit.

The case is therefore a useful reminder that even where an informal will is ultimately upheld, the journey to that outcome can be both expensive and emotionally taxing.

Practical lessons for willmakers and families