09 Apr “Informal” Wills: Where There’s A Will, There May Still Be A Way
Your last will and testament is a very important matter that should not be left for you to do “one day”.
We would give you the usual advice we give all our clients: you should never leave things too late or to chance by making your own will yourself.
You should always have your will prepared by legally qualified professionals such as ourselves as there are certain formalities that need to be taken care of in order to make a will legally valid.
Formality of a will
In short, a will to be considered legally valid must be:
· signed by the testator (that is, the person making the will);
· the signing must be in the presence of two witnesses present at the same time;
· the two witnesses must attest and sign the will;
· the signatures of the witnesses must be made in the presence of the testator.
Problems arise when some or all of these criteria are not followed, which often occurs when a will is prepared or signed outside of a lawyer’s office.
For example, when the testator makes his or her own do it yourself will kit (or “homemade”) will or signs his or her will on a piece of paper without getting the document witnessed.
If a document cannot be readily proved valid as a formal will, then there may be no alternative but to apply to the Supreme Court and produce evidence to satisfy the Court that a document, though “informal”, is nonetheless the last will and testament of the deceased.
In these cases, the Court needs to be satisfied that:
· a document expresses the testamentary intentions of a deceased person (in other words, it should be apparent from the document how the deceased wanted his or her assets dealt with after his or her death); and
· the deceased person intended the document to constitute his or her will (in other words, the document was intended by the deceased to represent his or her final or last wishes).
Applications in support of “informal” wills are made to a Judge of the Supreme Court and a lot of evidence needs to be produced to the Judge whereas applications for Probate of “formal” wills are made in a usually much more streamlined and straightforward process to the Probate Registry.
As you will understand, proving an “informal” will usually adds a lot more expense, difficulty and delay to the process which could have been avoided if the testator spent the time and the small amount of money it commonly takes to have the will formally prepared by a lawyer.
Of course, this is not always practical or possible, for example, when the testator is on his or her death bed or is isolated in some way at the relevant time and wants to give effect to his or her dying wish by signing or producing a document that nonetheless contains his or her last will and testament.
Provided that the Court is satisfied that the document:
· expresses how the deceased wanted his or her assets dealt with after his or her death and
· intended the document to represent his or her final wishes
then the Court will usually, but painstakingly, grant the application particularly if it is not contested or there are no persons whose interests will be adversely affected if the document is admitted to Probate.
Examples of “informal” wills
The law cases provide many examples of “informal” wills including:
· suicide notes containing some instructions about how the deceased wanted his or her property dealt with;
· unsigned handwritten notes found on the reverse page of a diary maintained by the deceased;
· a will scrawled on the wall by a dying man;
· the last wishes of a lost bushwalker scratched on a plastic water bottle.
Because the word “document” is not defined in the legislation dealing with “informal” wills, the Supreme Court has had to define the word itself very broadly in order to give effect to the last wishes of deceased persons.
Therefore, “document” is not limited to writing on paper but in keeping with modern ways of recording a person’s wishes, has included:
· a DVD containing video footage of a deceased addressing his testamentary intentions;
· audio cassettes; and
· even a computer file found on a computer hard drive.
While the Court will validate an “informal” will if it otherwise meets the important criteria referred to above, it is always preferable to execute a will in accordance with the formal requirements to avoid uncertainty and ambiguity that is often a problem in the case of “informal” wills.
The Court will not grant an application if there is any doubt that a document expresses how the deceased wanted his or her assets dealt with after his or her death or that the deceased intended the document to represent his or her final wishes.
Therefore, a draft of a will a person saves on their computer with the intention of later having it signed will not be held to be that person’s last will.
Leaving things to chance in this way will invariably be extremely costly to your estate and usually avoidable. Wills and succession are a classic case of a false economy that people fall for time and again, leaving a costly mess behind for their loved ones.
Consider this comparison:
· A standard formal will may cost you around $300 to have properly drawn by a legal practitioner and a standard Probate application of your will may cost around $2,000 in legal fees plus the Probate Registry filing fee;
· An “informal” will clearly will not cost you anything but an application to have your “informal” will proven will cost your estate a minimum of $5,000 to $10,000 if the document is not challenged and certainly a whole lot more than this if the application is challenged – with absolutely no guarantee that it will be successful!
You and your loved ones have been warned!
This blog is published by Di Rosa Lawyers for informational purposes only and is not considered legal advice on any subject matter. By reading and re-publishing the blog, you acknowledge that there is no solicitor-client relationship between you and Di Rosa Lawyers. This blog should not be used as a substitute for legal advice from a legal practitioner who specialises in the area and you are urged to consult us or seek your own independent legal advice on any specific issue or matter.