The Validity of an Informal Will
An informal will is a document which states the testamentary intentions of a deceased individual, but is not executed in accordance with the formal requirements for a valid will (e.g. not being witnessed correctly).
Section 8 of the Succession Act 2006 allows the Court to dispense with the formal requirements of a Will if satisfied that the deceased intended the document to constitute, amend or revoke (fully or partially) his or her Will.
The issues that a Court will consider when determining whether the document in question is a valid informal will are as follows:
1. Is there a document?
2. Does the document specify the testamentary intentions of the deceased individual?
3. Does the evidence indicate that at the time the document was brought into existence the deceased by some act or words demonstrated their intention that the document should constitute their Will?
In determining the above, the Court may have regard to:
- How the document was executed; and
- The testamentary intentions of the deceased. This may include prior statements made by the deceased.
Recently, in the case of Calokerinos, Executor of the Estate of Sclavos v Yesilhat , a note signed by the deceased but not witnessed correctly was held to be an informal will.
In this case, the Court decided that the note qualified as something which disclosed the deceased’s testamentary intentions because it referred to the deceased “feeling unwell” and stated that he “must put things in order”.
The Court also determined that the document formed his will as it had the features of Will, which included:
- appointing an executor;
- specifying whom would receive his entire estate;
- revoking his previous wills; and
- providing directions for his burial.
To avoid unnecessary proceedings, we recommend that you ensure your Will is executed in accordance with legislative requirements.
If you require any further information in relation to your Will, please contact our team of Lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry form today.