Informal Wills in Australia

We’ve all been there. You’ve put in the time and effort to create something only to discover too late you made a mistake.

Maybe it’s a typo on a resume you’ve already sent out or you forgot to attach an important document. In most cases, the consequences aren’t too bad.

But when it comes to creating a will if you don’t get it right, it may not be considered valid before the courts. At that point, it’s too late to do anything.

In this guide, Safewill explains what constitutes an informal will and how to avoid creating one.

What is an informal will?

An informal will is a document which is intended to be used as a will but does not comply with the strict legal requirements set out in state or territory legislation. To be considered valid a will must be written by someone who is over the age of 18 who is mentally fit. It must include the date it was written and a signature of the testator as well as the signatures of two witnesses.

These days, an informal will can take on many different shapes or forms:

• A handwritten note or instructions;

• Typed up notes on a computer or other electronic devices like a tablet or phone;

• An audio or video recording;

• A text message or email;

• Or instructions to a solicitor with directives to create or update a will which were not signed or witnessed before death.

How do you prove an informal will?

Before applying for a grant of probate or letters of administration, the applicant will need to gather as much evidence as possible to prove they are submitting an official testamentary document for consideration. The courts will make their judgement based off the following requirements:

1. Is there a document?

Under the Interpretation Act, a document could include: ‘anything on which there is writing,’ anything which contains ‘marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or a map, plan, drawing or photograph.’

2. What is the intention behind the document?

Intent is one of the most important components courts will consider when deciding whether or not a will is valid. To determine whether the document was intended to be used as a will the court will consider where the document was stored, who had access to it and how much time elapsed between its creation and the writer’s death.

3. Does the document set out the deceased person’s testamentary wishes

The document must include details explaining that it should be used as an official testamentary document upon the writer’s death. This could include a written directive clarifying that it is a will or details around appointing an executor.

Is an informal will valid?

The court will ultimately decide whether or not an informal will is considered a valid testamentary document. Each situation is dealt with on a case-by-case basis, meaning the outcome will vary depending on the specific circumstances. To improve your chance of having the Will validated, it is important to gather as much evidence as possible to support your claim. This could take the form of witness statements, text messages, email correspondence, or communication between the deceased and a solicitor prior to their death.

The success and failures of informal Wills

Queensland

Karter Yu died on 2 September, 2011 without a formal Will in place. But a series of notes had been drafted on his iPhone outlining his final wishes. One of the documents began: ‘“This is the last Will and Testament…” and finished with his full name and address. He also named an executor to carry out the instructions and deal with his affairs within the notes. The Queensland Supreme Court ruled the Will was valid based off the above evidence, as well as the fact the Mr Yu had committed suicide shortly after writing the notes.

Victoria

Suzanne Prien died on 24 February 2016 with a will dating back to 29 July 2009 and an informal codicil dated 15 February 2016. The codicil was a series of notes taken by her solicitor, with instructions the notes ‘form confirmation of testamentary intentions’. The codicil set out to change the original Will by giving her daughter Sascha a larger share of the Estate than her estranged son Simon. After the meeting with the solicitor, her daughter Sascha then emailed the solicitor further instructions to bequeath cash gifts to individuals. A week later Ms Prien was admitted to hospital. Even though the solicitor emailed a draft will to be reviewed she fell unconscious and died before seeing or signing the document. The Supreme Court ruled the informal codicil was not valid as they were not satisfied the deceased was aware of the contents of the document and may not reflect her true intentions.

Summary

Informal wills can take many shapes and forms - from handwritten notes to email drafts or video recordings. If you don’t have a will in place and your death is imminent it may cross your mind to try and pull together a testamentary document as a last resort. But it may be thrown out by the courts after you die if it doesn’t resemble an official legal document.

A valid will must clearly spell out the writer’s intentions that it constitutes a testamentary document. The writer must include the date and sign the document in the presence of two other signatories. If these elements are missing you may unintentionally create an informal will and run the risk of complications after your death.

While court officials do sometimes grant probate for informal wills, each decision is made on a case-by-case basis. They will review all evidence presented and make a ruling based on whether or not there is a document which purports to set out the writer’s final wishes ahead of their death.

Since there is no certainty around informal wills it is better to set up a valid will while you are still alive. With Safewill it’s easier than ever to create your own will from the comfort of your home for only $160.