What is an Informal Will?

An informal Will refers to a document that does not comply with the requirements for a valid Will under the Wills Act 1997 (Vic)[1] (“the Act”).

It is not uncommon that following someone’s passing, documents are found within their personal papers that provide instructions, record wishes or are intended to be a final Will.

Here we share some relevant case law surrounding informal Wills, the issue of “intention” of the Will maker and we outline the processes involved in proving intention to determine whether or not a document is recognised as a valid Will.

Start with the basics. What is required for a Will to be valid?

In Victoria, the following rules must be followed for a Will to be valid[2]:-

  1. the Will must be in writing;
  2. the Will must be signed by the Will maker (testator) or some other person in the presence and by the direction of the Will maker with the Will maker’s intention of executing a Will; and
  3. two witnesses are required with each witness to attest and sign the Will in the presence of the Will maker.

What happens if a Will maker hasn’t complied with the requirements?

Despite a document not complying with the requirements of a valid Will, the Act does provide the court with the power to consider an informal Will.

In exercising its power, the court needs to be satisfied that, based on the following two points:

  • any evidence relating to the manner in which the document was signed[3]; and
  • any evidence of the testamentary intentions of the Will maker, including evidence made by the Will maker[4];

the Will maker intended this document to be his/her Will.

The Test

The test for an informal Will to be admitted to probate is summarised by Powell JA in the matter of Hatsatouris[5].  That test states that:

  • (a) it must be a document;
  • (b) it must appear to record the testamentary wishes of the Will maker; and
  • (c) it must be intended, without anything more, to operate as a Will.

The court must be satisfied that the Will maker had testamentary capacity (sound of mind), knew and approved the contents of the informal document and was free from undue influence or suspicious circumstances.

The court has provided guidance in its assessment of an informal Will that includes:

Not mere wishes

A document that includes expressions such ‘my wishes’ or ‘my request’ will not normally be admitted to probate.

Draft not seen or read

Draft Wills not seen, read, or written, or in some way authenticated will be considered no more than ‘instructions’ or a note of ‘instructions’, and will not be admitted to probate as it lacks the required intent to be considered the Will of the deceased.

Awareness of formal requirements for a Will

The Will maker’s lack of awareness of the formalities of a Will is more likely to allow the court to infer that the deceased intended the informal document to be his or her Will.

Location of document

The court has also indicated that the testamentary intention based on the way the Will maker treated or stored the document should be taken into consideration.  If the Will maker has placed the document in a tin box that contained items of no value, then the court is likely to decide that the Will maker did not attach importance to the document and therefore was not intended to be his/her Will.

How can Burke Lawyers assist you?

Our Wills and Estates lawyers have extensive experience in all matters relating to Wills and Deceased Estate Administration including the review of Informal Wills.

If an informal document names you as an Executor, you may be required to apply for a Grant of Probate on the informal Will or disclose its existence in your application for Probate.

If this article has prompted you to question whether or not you have found a document that may be an Informal Will contact us today on +61 3 9822 8588 or email our team HERE.

[2] S 7 of the Wills Act 1997 (Vic)

[3] S 9(3)(a) of the Wills Act 1997 (Vic)

[5] Hatsatouris v Hatsatouris [2001] NSWCA 408

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