What will be accepted as an Informal Will?
Feb 14, 2020We often hear people say “I’ve been putting off my will for such a long time!” But what happens if you put it off for too long and you don’t have the opportunity to have your will prepared by a solicitor, or even if you write your own Will without the benefit of obtaining legal advice, in the hope that the document you have written is an effective Will?? The following cases highlight some of the Court’s considerations in deciding if your “DIY Will” can constitute an “informal Will”, which can then be recognised as a valid Will.
- Unsent Text Message
In 2017 the Queensland Supreme Court decided that an unsent text message was an informal will. The deceased had recently separated from his spouse and in the message he provided that his estate should be left to his brother and nephew with no provision for the former spouse. Ultimately the text message was considered to demonstrate enough testamentary intent, and clear enough directions about his assets to be considered an informal Will. Whilst that did not prevent the former spouse from making a claim on the estate, it did mean that the deceased’s brother and nephew were entitled to provision from the estate.
- Unsigned, Handwritten Will
In a matter before the New South Wales Supreme Court the Court was faced with a situation in which the deceased had a previously executed Will (executed in accordance with the requirements of section 6 of the Succession Act 2006 (NSW)), and a subsequent handwritten will (prepared by the deceased) which set out different intentions to the formal will but the subsequent handwritten Will was not signed or witnessed. Section 8 of the Succession Act 2006 (NSW) permits a Court to dispense with the requirements for execution, alteration or revocation of Wills, by considering whether the subject document purports to state the testamentary intentions of the deceased. In this instance, the Court found that the deceased created “a document which bespeaks an intention to make a will, rather than a note which idly put present thoughts down”. Accordingly, the will was admitted for probate.
- Invalid Informal Wills
In matters before the Victorian Supreme Court in recent years, informal wills such as a handwritten note on the back of an envelope leaving a gift, a note labelled “insert in will” and a list of cash gifts with names were considered invalid and did not go far enough to establish testamentary intent or intention for those documents to be considered the testator’s will.
What does the Court require to be satisfied the document is an informal will?
Section 8 of the Succession Act 2006 (NSW) (‘the Act’) provides that the Court may permit a document to be admitted for probate if:
- The document does not meet the formal requirements of a will under section 6 of the Act but purports to state the deceased person’s testamentary intent (whether it is to alter, revoke or replace their previous will); and
- The Court is satisfied that the person intended that the document form his or her will.
Therefore, it does not necessarily need to be signed or witnessed to be considered a will by the Court.
So why should I get a formal will if I can leave a text message?
Ultimately, by leaving an informal will, you are leaving a lot to chance. You cannot guarantee that a Court will consider your informal will satisfies the requirements of the Act and you will miss an opportunity to structure your estate in a way that protects your assets, and minimises tax consequences of your passing. If the Court will not make a declaration that the informal will satisfies the Act (and therefore grant probate) then the estate will be subject to the laws of intestacy. See our blog on what to do in the event that your loved one passes without a will in place and more information about intestacy.
For that reason, it is important that you get formal advice about your estate and prepare a formal will to prevent someone from taking under your estate who you may want to exclude.
Contact the Shire Legal team if you have any questions.
Stay informed
Sign up to receive regular updates regarding changes to the law, Court decisions and other happenings of interest.
