Understanding Informal Wills in Australia: A Guide

An informal will may not be considered valid before the courts in Australia. Read this guide to learn what constitutes an informal Will and how to avoid creating one, as well as the headache that can come with it.

Why informal Wills matter for your Estate Plan

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- not getting it right can result in your estate plan, assets and assigned powers of attorney not being considered valid by the courts.

Why it's important to have a legal document for your estate plan

Creating a valid Will is crucial to ensure that your assets are distributed according to your wishes and that your beneficiaries- including children, loved ones and wider family- are supported after your death.

You are responsible for ensuring that you write your Will in a way is valid- including having it signed by witnesses. Only after your Will has been established as valid, will your estate plan take effect in distributing remaining assets to beneficiaries.

If you've left an informal Will which you have failed to sign as required- it will be considered an informal Will and may not hold up on court. 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 of sound mind is over the age of 18. The document must also include the date it was written, a signature of the testator and the signatures of two witnesses. This is essential to ensure the powers of an executor and the asset distribution to beneficiaries carries through in court.

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.'

If there are clear instructions left by the deceased- covering family members to receive assets left in the estate and an executor to administer - then this could be considered an informal Will.

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, and able to be considered apart of legal documents used to determine estate distribution to family members.

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. At this time, the court may also consider testamentary capacity of the deceased at the time of writing.

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

The document must include details and clear instructions 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 to manage the estate. In addition, this also involves ensuring the testator had mental capacity when writing the Will.

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 statements from witnesses, 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.

Despite best efforts to sign and write a document which outlines your wishes and assigns powers to an executor- it may be thrown out by the courts if it doesn't resemble an official legal document.

This can leave your children and other beneficiaries with a lack of support when they need it the most. Leave your house ownership in the balance, financial assets at the discretion of the Government and remaining money to people other than the beneficiaries named in your informal Will.

Ensuring your informal Will is valid

A valid Will only takes effect if it clearly spell out the writer's intentions. If this can be determined, then an informal Will can be constituted a testamentary document- and associated power can be assigned to the executor, beneficiaries can benefit from the estate and any special gifts or testamentary trust can be enacted. Without this, family may not have the power to access bank accounts or distribute property according to your wishes.

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. This is why it is often advised to seek legal advice from a lawyer specialising in the field; to ensure that your Will holds the power of a valid, enforcable document.

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.

The intention of requirements on witnesses and having a signed document is to protect property and assets in your estate from abuse of power, or scams. If an informal Will is considered invalid, then your remaining estate will likely be distributed to children and close family.

Safewill Can Help

Since there is no certainty around informal Wills it is better to set up a valid Will in life, rather than play against the odds in death. With Safewill, it's easier and more affordable than ever to create your own valid Will from the comfort of your home and with the peace of mind from a lawyer, for only $160.

Representing a modern, online option for busy modern day life- Safewill allows you to assign the person you want as executor, sign your Will with the help of a lawyer and leave complete instructions on your house, financial investments and remaining assets in the estate. You pay an upfront cost, and benefit from a more flexible and user-friendly service than with a traditional, paper Will.

So, even if your unable to leave the house, the Safewill online Will service leaves no excuse to getting your estate in order.

To find out more, call one of our dedicated experts on 1300 730 639, or via live chat now.