May 2023 – Rosemary Saad
INFORMAL WILLS IN NSW
A formal Will in New South Wales follows guidelines outlined in the Succession Act 2006. If a Will does not follow these legislative guidelines, all hope is not lost! These Wills are called informal Wills and can still be considered valid by a Court in NSW.
Formal or informal Wills?
For a Willin NSW to be recognised as legal and binding it must be in writing; executed by the testator; signed by the testator (or someone on their behalf and in their presence); and witnessed and signed by two witnesses.
An informal Will is any document that does not meet one or more of the above guidelines. It could be a Will, a Codicil or a Revocation. Informal Wills can include documents that have been printed or are still stored on a computer, handwritten documents, text messages, suicide notes, videos, audio records, solicitor’s notes with the deceased and even draft Wills that never made it to the signing stage.
Despite not following the ‘formal guidelines,’ common law precedent has manifested ‘informal will guidelines.’ When deciding whether to validate an informal Will, the Court adopts the precedent provided in Hatsatouris v Hatsatouris. This states that a document is likely to be considered a Will if it is written or electronic, contains the deceased’s testamentary intentions, and the Court is satisfied that the deceased wanted the document to function as their Will. The probate applicant bears the burden to establish these elements.
Cases of Valid informal Wills vs. Invalid informal Wills
Aman in hospital dictated his final testamentary wishes to his daughter, planning to execute a formal Will later, acknowledging that he was going to die soon. These notes were titled “Dad’s wishes” by his daughter. The Supreme Court held that this was a valid informal Will since it was evident from the notes that they were instructions to dispose of his assets. The Court was satisfied that the deceased intended this to be his “stopgap” Will, awaiting the formality of his bequests into a proper Will, and noted that a consideration, in this case, was the close proximity in time of death to the preparation of the document. This proved his intention for the notes to be his testamentary dispositions.
– Borthwick v Mitchell,
Even when the testator has left testamentary instructions, the Supreme Court has not recognised all documents as valid informal Wills. In theEstate of Annie Margaret Kent, not all the informal Will elements were met. There was a document, but it was never signed and it was unclear whether it purported to embody the testamentary wishes of the deceased. This was because she did not sign the document despite it having been ready to be executed for two weeks. The Court said testamentary intent for that document to be her Will could not be found because of this hesitancy.
How to avoid making an informal will
Even if the Supreme Court accepts informal Wills, the process can be complex, uncertain, and costly. For yours and your loved ones sake, you should not take this risk!
It is recommended you seek legal advice and make a valid Will so that your intentions are properly and legally documented so your beneficiaries can receive their inheritance without issue!