Informal Wills and a Stitch in Time…

Many people will be unaware that for a formal will to be valid, it simply must be in writing and signed by the maker in the presence of two witnesses.[1]

A will that fails to meet these requirements, usually known as an informal will, may nevertheless be deemed to be valid.  However, getting to that conclusion could be a costly, drawn-out process for whoever applies to administer the estate (normally the executor).  The applicant will need to convince a court that the document satisfies the criteria of an informal will.  Often this will require them to commence legal proceedings.

What is an informal will?

For a document to be a valid informal will it must:

  • Be contained in a document (or part of a document);
  • Embody the maker’s testamentary intentions; and
  • Be intended by the maker to constitute their will.[2]

There have been some interesting arguments about the definition of “document” over the years.  A “document” includes any publication expressed or described upon any substance by means of letters, figures, or marks.  A will written on a wall, one that is photographed or even one which is video-taped (or electronically recorded) may constitute a “document”.[3]

The next two criteria are slightly more elusive:

For a document to “embody the maker’s testamentary intention” it must be found to be an expression of the maker’s wishes regarding the final disposition of all of their estate.   If there is evidence of equivocation by the maker of the document, a court may not be satisfied that it reflects the absolute or final intentions of its author.  If, for example, a person instructs their solicitor to draft a will, but then never actually signs it, a court is extremely unlikely to conclude that the unsigned document embodies the makers’ testamentary intentions.  This is because it is almost impossible to exclude the possibility that they would have changed their mind at some point before signing the document, or that they did not fully understand the effect of the document.

Whether or not the maker “intended the document to constitute their will” depends upon the document itself, as well as any evidence from which the Court can infer intention.  For example:

  • The presence of the words “last will and testament” may help, but will not be decisive.
  • A signature at the end of the document will go some way to persuading a court that it was intended to operate as a will.  Indeed, if the document is unsigned it will be extremely difficult for a court to conclude that it was intended to operate as will.

Invariably family members and friends abound to give evidence about what the maker of the will said to them at various intervals in time.  If these accounts are contradictory, a court will find the process challenging indeed.

Get a lawyer to draft your will

A properly drafted will is certainly the best way to avoid the host of problems that can arise from an informal document.  Whilst it may not be able to prevent the beneficiaries from having to deal with Family Provision Act claims, or even claims that the maker lacked testamentary capacity, it will usually avoid costly and time-consuming arguments about whether there is a valid will or (if several were written over the years) which specific one is valid.

If you want to be certain that your estate will go to your named beneficiaries, a solicitor will ensure that all relevant legal requirements are met. Where doubt exists after the event, the estate can very easily be consumed by legal costs.

For more information on this article or any other wills and estate disputes please contact Claire Hawke-Gundill on (08) 9321 3755.

[1] Wills Act 1970 (WA), section 8.

[2] Spender v Spencer [2009] WASC 198.

[3] Treacey v Edwards (2000) 49 NSWLR 739; Re Trethewey (2002) 4 VR 406; Re Torr (2005) 91 SASR 27; Re Estate of Henry [2003] WASC 85.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.