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What is an informal Will?

An informal Will is a document purporting to be a person's last Will and Testament, that does not comply with the very strict formal requirements for a valid Will set out in the relevant state acts.

In Victoria, Section 7 of the Wills Act 1997 sets out the following requirements for a formal Will, amendment of a Will (Codicil) or revocation of a Will:

It must be in writing
Signed by the willmaker
In the presence of at least 2 witnesses who are present at the same time
Signed by at least 2 of these witnesses in the presence of the willmaker; and
The willmaker must sign the document with the intention of making a will.

Since 1988 the Supreme Court of Victoria has the power to dispense with some of these strict formal requirements, and may accept a document as an informal Will under certain conditions. This power mirrors similar powers in other states.

Requirements for getting an informal Will accepted

Each application for probate of an informal Will relies on its own facts. However, as a minimum the Court must be convinced, of the balance of probabilities, of the following elements:

1. A document

The purported Will must be in the form of a document. This can be any piece of paper which contains writing, or symbols which can be reliably 'translated', and also computer files, audio recordings or video recordings.

2. Purporting to record the testamentary wishes of the deceased

It must be clear from the contents and/or other circumstances that the document means to deal with the deceased's affairs in the event of his or her death only, and does not contain provisions for gifts during the deceased's lifetime for example.

3. And which the deceased intended, without anything more, to operate as a Will

The deceased must have intended the actual document to be his or her Will. A mere intention to make a Will on the terms contained in the document, a statement of wishes, or a draft Will, is unlikely to satisfy this requirement without further evidence.

It is up to the person applying for probate of an informal Will to prove all these elements to the satisfaction of the Court.

In reaching its decision, the Court will take into consideration the terms of the document, the circumstances surrounding the creation of the document, how, when and where the document was located, evidence of other persons with whom the deceased discussed his or her intention before death and evidence of searches made to locate other Wills.

The Court will also look carefully at the deceased's capacity at the time the document was created, and whether there was undue influence exerted on the deceased.

Successful applications for Informal Wills

1. Statutory Declaration sworn at a Police station

The Court accepted a statutory declaration made by the deceased on a template form at her local police station as an informal Will. The document stated that it was the deceased's 'last will and testament' and made provisions for all of her assets, and was witnessed by one police officer only.

2. Document typed on the deceased's mobile phone shortly before the deceased's suicide (RE: Yu [2013] QSC 322)

The Queensland Supreme Court accepted a note typed on the deceased's mobile phone as an informal Will. The note began 'This is the last Will and Testament…', identified the deceased by name and address, demonstrated an intention to appoint a person Executor and made provisions for all of the deceased's assets. The deceased had also typed his name at the end of the document.

In reaching its decision, the Court also took into account that the willmaker suicided shortly after writing the document, which showed that he was contemplating his imminent death at the time of writing.

Unsuccessful applications for Informal Wills

1. Unexecuted draft Will (Robinson v Jones [2015] VSC 222)

The deceased left a formal Will and an unexecuted draft Will changing the beneficiary as to a 20% share. The deceased had given one of the executors, who was his solicitor, instructions for the new Will and the solicitor had sent the deceased a draft Will for review. The deceased told the solicitor some days later that the draft Will was in the form he wanted, but does not appear to have made provisions for singing the original of the draft Will. He suicided one week later.

The Court did not accept the draft Will as an informal Will, as it found the deceased did not have the intention that the draft document itself should be a valid Will, and no evidence was presented that the deceased intended to sign the original of the draft Will.

2. Post Office Will Kits (In the will of Ethel Florence Panigas (deceased); In the will of John William Panigas (deceased) [2013] QSC 172]

The Court found the couple had shown a general intention to make Wills, it did not recognise the kit wills, as they had been filled out incorrectly, and due to the ambiguity in the terms of the documents, it was impossible to determine their testamentary intentions.

What should I do?

As the above examples show, applications to have an informal Will recognised have uncertain outcomes. They are also very expensive (often in the tens of thousands of dollars) and can delay administration of an Estate by years.

If you currently have a handwritten Will, a kit Will or any other document which sets out your testamentary intentions other than a formal Will, you are encouraged to make a formal Will as soon as possible.

If a loved one has passed away and you have found a document which purports to be a Will or a Codicil to a Will, contact a solicitor as soon as possible to obtain advice.

Our friendly Wills and Estates Team is happy to assist you with your new Will, or to guide you through the process of dealing with an informal Will.