In today’s digital world, how we communicate final wishes is evolving. While written wills remain the gold standard in Australia, questions like “Are oral wills valid in Australia?” are becoming increasingly common—especially among older Australians planning their estates or caring for aging relatives.
Are these modern approaches legally valid? And what are the risks if you rely on a will that's not written? In this blog, we break down exactly what the law says, what counts as a valid testamentary document, and how you can safeguard your intentions. Stay with us as Legal Finda helps you navigate this complex but important area of estate law.
The Rise of Non-Written Wills in Modern Estate Planning
While traditional wills are usually typed, signed, and witnessed, real-life circumstances—like sudden illness or accidents—don’t always allow for perfect planning. This has led many Australians to wonder:
- Can a dying declaration be considered a will?
- Is a video will legally binding?
- Are oral wills valid in Australia?
- What if I record my last wishes on my phone?
This is particularly relevant for older Australians, aged 40–70, who are increasingly engaging in estate planning and may face unexpected health issues. According to the ABS, around 74% of Australians aged 65+ have not updated their wills in over 10 years, leaving many vulnerable to legal disputes over unclear or informal arrangements.
Are Oral Wills Valid in Australia? Legal Framework Explained
Let’s address the core question directly: Are oral wills valid in Australia?
In most states and territories, oral wills are generally not recognized as valid under standard probate rules. For example, the Succession Act 2006 (NSW) requires a valid will to be:
- In writing
- Signed by the testator
- Witnessed by two people
However, courts can accept informal wills, including oral statements, video recordings, or even unsent text messages—if there's clear evidence the deceased intended that document or recording to serve as their will.
Example: In Yazbek v Yazbek (2015), the NSW Supreme Court accepted an iPhone note as a valid will. This case demonstrates that while rare, informal wills—including oral declarations—can be upheld under special circumstances.
But keep in mind: that informal wills often require court intervention, which is discretionary, time-consuming, and expensive. So while the answer to “Are oral wills valid in Australia?” is technically yes, it’s not a reliable or recommended route.
Testamentary Wills in Australia: The Gold Standard
A testamentary will is a formal, written will that is executed properly with witnesses. This remains the most secure and court-recognised form of estate planning.
Why testamentary wills are preferred:
- Fully enforceable in court
- Minimal chance of dispute
- Faster probate process
- Clear reflection of final wishes
For Australians over 50, testamentary will offer peace of mind and reduce the risk of complications that arise when asking “Are oral wills valid in Australia?”.
Recorded Wills: Are Video or Audio Wills Legal in Australia?
Another common question tied to “Are oral wills valid in Australia?” is whether recorded wills—either audio or video—are legally binding.
Here’s the short answer: No, not by default.
Video or audio recordings are not automatically valid, but they may be accepted by courts as informal wills if they clearly:
- State testamentary intent
- Show the person is of sound mind
- Show no coercion
- Confirm the speaker’s identity
Pro Tip: If you create a video expressing your wishes, always back it up with a formal written will. In this case, the recording can support your will—not replace it.
The Validity of Non-Written Wills in Australia
When asking “Are oral wills valid in Australia?”, it’s important to understand that non-written wills—whether oral, text-based, or recorded—are treated as informal wills.
To be accepted, they must:
- Be proven in court
- Clearly show the deceased’s intention
- Be supported by credible evidence
While some are accepted, many are rejected due to missing details, unclear wording, or conflicting interpretations. If you’re considering a non-written will, speak with a legal advisor or consult Legal Finda.
Case Studies: When Informal Wills Worked—and When They Didn’t
Accepted: Video Will in Victoria (2021)
A man with terminal illness made a clear, detailed video outlining his estate distribution. The court accepted it as a valid informal will.
Rejected: Oral Will in QLD (2018)
A dying woman made a spoken statement about her wishes in front of one relative. The court did not recognise it due to a lack of formal documentation and supporting witnesses.
These cases show that while courts sometimes validate informal wills, relying on them—especially if you're asking “Are oral wills valid in Australia?”—is still a gamble.
Risks of Relying on Non-Written or Oral Wills
Here are some of the key risks tied to informal wills:
- Disputes among heirs
- Delays in probate
- Legal costs
- Family disagreements
- High chance of invalidation
Older Australians often want to make things easier for their families. That’s why formalising your wishes with a legally valid will is essential—especially given how uncertain the answer to “Are oral wills valid in Australia?” can be in practice.
How to Make Sure Your Will Is Recognised?
To protect your estate and avoid court battles, take these simple steps:
- Create a testamentary will that meets legal requirements
- Avoid relying solely on oral or video messages
- Store your will in a safe place—and let someone know where it is
- Update your will regularly (every 5 years or after major life changes)
- Seek legal advice—Legal Finda can connect you with top estate lawyers
By planning ahead, you won’t need to worry about the question “Are oral wills valid in Australia?”—because your legacy will be protected.
FAQs
Can I just say my wishes to my family before I pass?
Not safely. While courts may accept oral statements in rare cases, oral wills are not considered valid by default.
What’s the safest type of will in Australia?
A testamentary will—in writing, signed and witnessed—is the most enforceable form of estate planning.
Can I record my will on my phone?
You can, but it’s risky. Recordings may be accepted as informal wills but are never guaranteed. Always back it up with a formal written will.
How do I ensure my video or oral will is accepted?
Use them only as supporting materials—not as replacements. Get legal advice and formalise your will in writing.
Conclusion
So, are oral wills valid in Australia? Technically, they can be—but only in very limited and exceptional circumstances. For most people, relying on non-written wills is legally risky and can create major complications for loved ones.
If you’re planning your estate—or supporting ageing parents—make sure you choose clarity over uncertainty. A formal will is the best way to ensure your final wishes are honoured.
Let Legal Finda help you connect with experienced estate planning lawyers across Australia. With expert guidance, you can secure your legacy—without leaving anything to chance.
Are oral wills valid in Australia? Not reliably. But with the right help, your peace of mind absolutely can be.
