Thinking | 13 November 2017
Informal wills – don’t risk it
A recent trend in Victorian Supreme Court decisions has highlighted the importance of seeking legal assistance when preparing a Will.
In order for a Will to be valid in Victoria, it must meet certain formal requirements. These requirements exist to ensure that the Will expresses the testator’s true testamentary wishes and are not the result of fraud, undue influence or the testator’s impaired capacity.
Legislation introduced in 1998 enables the Court to dispense with these requirements and to accept what are known as ‘informal Wills’. The Court will only accept an informal Will if it is satisfied that there is a document that records the testator’s intentions, and that the testator intended that document to be their final Will.
Only recently, an unsent text message was accepted by a Queensland court to be a valid Will under Queensland laws that largely mirror their Victorian counterparts. The text contained directions as to who should receive the writer’s property after his death, and what should be done with his remains. The text message signed off with the words ‘my will’.
This Queensland finding is in stark contrast to a recent trend in Victorian Supreme Court decisions unwilling to accept informal Wills, particularly if there is any doubt about the testator’s capacity, or their intention to create a Will.
In Re Hobbs1, the fact that a testator had previously had Wills prepared up by solicitors suggested that the document in question was only intended to be instructions for the preparation of a new Will. The fact that no one witnessed the testator signing the document and the possibility of coercion from family members also influenced the Court’s decision that the document should not be accepted.
Similar factors led the Court to reject an informal will in Re Sanders2, despite the fact that it had been typed and signed by the testator and had two witnesses.
Other recent examples of invalid informal wills include:
- a gift of cash written on the back of an envelope by a hospital patient to his mother, ‘in case something happened to him’3
- two handwritten pages that listed names and dollar amounts, and appointed executors, that were not attached4 and
- a handwritten ‘insert’ to a prior valid Will, which purported to amend the terms of the valid Will.5
While informal wills can be accepted by the Court, these recent cases only go to further reinforce the importance of obtaining legal advice in preparing and executing Wills. By not doing so, not only do you pass up of the opportunity to implement the many structuring opportunities that may be available to your family after your death, but you also leave open the possibility that your true testamentary wishes may not be followed.
If you or your clients wish to begin the succession planning process, please contact us.
1 VSC 424.
2 VSC 694.
3Re Tang  VSC 59.
4Re Lynch  VSC 758.
5Re Kelsall  VSC 724.
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