A will, in essence, is a document detailing how you would like your estate (assets and liabilities) handled after you pass away. It is often considered quite important to have one; particularly if you have specific intentions of who and where you wish to transfer your estate to. However, a will, as has been explored in recent court cases, can be informal. While not considered to be as solid and reliable as a formal will, in this article we will briefly explore what constitutes an informal will and how they are created; asking, is it worth the risk?

The matter of Sultanova v Bolgarow (2019) heard in the Victorian Supreme Court, showed one way an informal will can be made. Prior to her death, the deceased, Nina Elzow was having a will prepared by her solicitor. The draft will was finalised and a summary provided to Nina so that she could execute it. She told her solicitor that the will was in the exact form she wanted, however, Nina held off on executing her will as her solicitor was not available to attend to her. As she did not want to deal with any of the solicitor’s delegates, Nina ultimately passed away without executing her new will. The Court determined that the issue in the matter was whether Nina’s unexecuted will was her final will and testament, or whether her previous executed will should take its’ place. In the matter, this unexecuted will became Nina’s ‘informal will’, so to speak. The court held that the law does not restrict informal wills from being held as a person’s final testamentary intention. Essentially, if the facts of a case show that a person intended to adopt a document as their will, even if it is yet to be executed, it can be conceded as the person’s informal will.

While the above case showcases a relatively positive outcome in relation to informal wills, it is vital not to be tricked into false security. There are significant risks and detriments to having an informal will that typically outweigh this positive end. The psychological and financial expense of attending court to decide the will’s validity can be straining on your loved ones when you pass. A formal, executed will can abolish this stress and avoid the costly legal exercise. The reason being, there is little room to debate a formal will’s legal validity compared to an informal will. Having a formal will also prevents your estate from being distributed in accordance with the rules of intestacy, which may not provide outcomes you desired. Your estate inevitably will be distributed this way should you have no formal wills and should your informal will be deemed inadmissible or invalid. Having a formalised will can also minimise costs incurred by your estate as quite often it will reduce grounds for the contesting of your final intentions by providing clarity in your wishes.

 

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