Informal Wills – Do I really need a Will made by a lawyer?

What happens if the formal requirements are not met? There have been many cases in which people have sought to prove a variety of writings as the last Will of the deceased person, including a handwritten note, a text message, an email or even a video. These cases are known as informal Wills.

An informal Will is any document that contains the testamentary intentions of the maker (being a clear statement of the wishes and instructions in relation to their assets after their death) but does not satisfy section 6 of the Succession Act. Common examples include:

• A Will witnessed by only one person;
• An unsigned note stating it is a Will;
• A text to a loved one explaining what should happen in the event of death; and
• A draft document on the computer.

Under section 8 of the Succession Act, the Court may dispense with the requirements set out in section 6 and approve a document as the deceased’s last Will, including:

1.  A document;
2. That purports to state the testamentary intentions of a person; and
3.  Is intended to form a person’s last Will.

In the ever-increasing technological world we live in, the Court has adopted the meaning of a document to include documents created and saved on a smartphone, files saved in a computer, video and audio recordings.

The second and third requirements are often difficult to ascertain from an informal Will. To be valid, the document must be deemed to state the intentions of the creator and be made as their last Will. In the NSW Supreme Court case of Hatsatouris v Hatsatouris [2001] NSWSC CA 408, the Court found that if the creator did not intend the document to operate as their Will, it will not do so. The person seeking to use the document as a Will must prove on the balance of probabilities it was intended to be a Will. They may do so by refence to section 8(3) of the Succession Act which has regard to:

·  Any evidence relating to the manner in which the document was executed; and
·  Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

Whilst the Court seeks to uphold testamentary intentions wherever possible, it is often a lengthy, complex, and expensive process to prove that a document was really intended to be the Will of its creator.
If the Court is satisfied that such a document exists, it may declare that the informal Will is to be considered valid and its directions followed.

There are significant dangers in relying upon an informal Will as your last Will. For example, when a Will meets the necessary validity requirements, there are presumptions that the testator had testamentary capacity and they knew and approved the terms of the Will. However, an informal Will does not attract the presumptions and may be vulnerable to various challenges.

The greatest danger of an informal Will, however, is that the Court may not accept it. If the Court is not satisfied that requirements under section 8 of the Succession Act are made out, they may not accept the document as a valid Will. If this occurs, the estate will be distributed according to the statutory trusts under the Succession Act against the expressed wishes of the deceased person.

The process of seeking Probate of the informal documents is lengthy, complex, and expensive vastly outweighing the costs which would have been incurred if the Will was made properly with the assistance of a solicitor. It is much preferable to employ a solicitor to ensure your will is drafted and executed to meet the formal requirements than to employ a solicitor to make application for Probate of an informal Will.