Informal wills are overlooked until the time comes to deal with a deceased estate.
In Queensland the Succession Act outlines the formal requirements for the execution of a valid will.
These include, that the will must be:
- In writing; and
- Signed by the testator (or in some cases, someone else in the presence of, and direction of the testator) with the intention of executing a will; and
- The signature of the testator must be made or acknowledged by the testator in the presence of two witnesses.
However, where a document has not been executed in accordance with the formal requirements, the Court has the power to determine the document to be a valid but informal will.
For the formal requirements to be dispensed with, there are three requirements to be met:
- There is a document;
- The document purports to contain the testamentary intentions of the deceased; and
- There is evidence that the deceased intended that the document operate as their will.
Informal Wills
Examples of documents that have been held to be an informal will include:
- Handwritten notes;
- “Draft” will on computer
- Digital files;
- Text messages;
- Audio and video recordings.
Handwritten notes and amendments on a fully executed will have been deemed informal amendments (or codicil) to the original will.
A legal personal representative is under a fiduciary obligation to act honestly. The legal personal representative has a legal obligation to disclose and provide to the Court any document that could be reasonably held to include the testamentary wishes of a deceased. Therefore, it is not the case that a legal personal representative can select what document(s) they disclose to the court.
It is also possible that a document purporting to be an informal will leads to other issues, including:
- Failing to cover all assets of the estate;
- Family conflict over any uncertainty;
- Ambiguity in the document.
In order for a document to be found to be an informal will it is necessary that an application is made to the court for determination. This can be a costly and time-consuming process as it is necessary that evidence is provided to the court regarding the document and the circumstances of its creation.
Accordingly, the most effective way to avoid the costs, delays and stress associated with propounding an informal document is to ensure that a formal will is prepared that complies with the relevant requirements and is also kept up to date after major life events.
By Emma Nisbet – Special Counsel
Read More on:
The Importance of Regularly Reviewing Your Will
What Happens to Your Estate and Property Settlement After Death
Avoiding Family Disputes Over Wills: Key Legal Strategies
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