Your Will is a legal document which clearly sets out your intentions and wishes on how your estate is to be managed after your death.
There are several legislative requirements that must be met in regards to making valid Will and in Victoria, these include:
- The document must be signed by you;
- When making the document, you must have had the intention that it would be your Will;
- The document is signed by you on each page in the presence of two independent witness who were present that the same time you signed; and
- The document is dated the day you all signed it.
These requirements are provided under the Wills Act 1997 and exist to ensure that the Will is a correct reflection of your testamentary wishes and has not been as a result of fraud, undue influence or impaired capacity.
What is an informal Will?
An informal Will is a document which you intended to be a Will but has not been executed in accordance with the formal requirement above. However, it must still be a document that can be shown to have been created with the intention of it being your Will and a reflection of your testamentary wishes.
Can you obtain a Grant of Representation for an informal Will?
For an informal Will, an applicant (an executor or administrator depending on the Will) can made an application to the Court for a Grant of Representation however it is a more complex process than that of an valid Will. Legislation provides that the Court is able to dispense with the requirements of a valid Will where it is satisfied that an ‘informal Will’ is in existence however, there are certain requirements to be met:
- There must be a document;
- The document must record your testamentary wishes; and
- You must have made the document with the intention of it being your Will.
What will the Court consider in approving an informal Will?
When dispensing with the formal requirements of a valid Will, the Court is required to assess the facts in each case to determine the intentions of the deceased and whether the informal Will was intended to be a Will. In order to determine this, the Court will consider a number of things, including:
- How was the document treated by the deceased?
- Was the document kept with other important paperwork?
- Was the document given to anyone?
- Did the deceased make any statements before their death that confirmed or were inconsistent with the document?
- Why was the document made invalidly?
Accepted – Case Law
Re Logan [2021] VSC 131 – an unexecuted Will was accepted as an informal Will as it contained handwritten amendments made by the deceased.
Re Flanagan [2021] VSC 649 – a handwritten document titled “Will” that was kept in a sealed envelope was accepted to be an informal Will despite it not being witnessed and having two different dates.
Re Merry; State Trustees Ltd v King [2021] VSC 564 – the Will which was signed in the presence of one witness with a second witness signing at a later time was approved as an informal Will.
Re White; Montgomery & Anor v Taylor [2018] VSC 16 – a document typed on a computer prior to the deceased taking his own life was accepted as an informal Will
Refused – Case Law
Re Hobbs [2017] VSC 424 – because the deceased had previously used a lawyer to make valid Wills, the document which was not witnessed was held to simply be instructions for the preparation of a new Will and not an informal one. This case also dealt with the possibility of coercion from family members which was also relevant in the Court’s refusal of the document.
Re Sanders [2016] VSC 694 – the Court had concerns regarding whether the deceased had the intention of the document being her Will even though it had been signed by the deceased and two witnesses.
Don’t risk it
The above demonstrates that informal Wills can be accepted by the Court, but it is important to understand that the process of having an informal Will upheld is a lengthy and costly process. To avoid any uncertainty when making a Will, obtaining legal advice in preparing and executing Wills is essential.
If you are wishing to make a Will or have a document which you believe may be an informal Will, please contact our Wills and Estates Lawyers Melbourne at melbourne@nevettford.com.au or on +613 9614 7111.