What is an Informal Will?
An informal Will is a document that an individual has left behind, which does not meet the legal requirements for a valid Will as set out under the Wills Act 1997 (Victoria) (“the Act”).
Examples of an Informal Will can be quite broad, however, they can include:
- A document with no or only one witness signature;
- A document without a date;
- A text message sent by the person making the Will to a family member;
- A video recording outlining how the person’s assets should be distributed after their death.
This article explains the formal requirements for a will under the Act, discusses the legal standards and cases concerning an informal Will, especially those that are unsigned, addresses the issue of the Willmaker’s intention, and outlines the procedures for proving such intention.
What is a Formal Will?
In Victoria, for a Will to be valid under section 7 of the Act, it must comply with the following:
- The Will must be in writing;
- The Will must be signed by the Willmaker, or by someone else in the presence and at the direction of the Willmaker, with the intention of executing a Will; and
- Each witness must sign the Will in the presence of the Willmaker and each other.
What happens if a Willmaker has failed to comply with the formal requirements?
Even if a document fails to meet these requirements, the Act allows the Court to use its discretion to consider and accept such a document for probate.
Under section 9 of the Act, before the Court can decide to accept an informal document for probate, it must be convinced that the Willmaker ‘intended’ the informal document to be their last Will, based on:
- Evidence about how the document was signed; and
- Evidence of the Willmaker’s intentions, which can include statements made by the Willmaker.
The Test
The commonly cited test for determining whether an informal document should be admitted as a Will, is summarised in Powell JA’s decision in Hatsatouris, includes the following criteria:
- It must be a document;
- It must claim to represent the wishes of the Willmaker; and
- It must be intended, without anything more, to operate as a Will.
To admit an informal document to probate, the person supporting the document must prove, on the balance of probabilities, each element of the above test, as well as the Willmaker’s testamentary capacity at the time (meaning whether or not the Willmaker had the mental capacity to prepare the informal Will at the time). If not, the informal document cannot be accepted as a Will.
The third criterion of the above test, which is whether the document was intended to operate as a Will, is often difficult to establish, especially since the deceased cannot confirm their actual intentions at the time the informal document was created. As such, the Court considers various types of evidence which may indicate the Willsmaker’s intention.
Recent Examples
In 2024, in a case in which iWills Legal acted for the successful Plaintiff, an application was made by the Plaintiff to probate a handwritten document entitled “Will” which was signed by the Willmaker in the presence of just one witness.
In this case, the handwritten document did not meet one of the legislative requirements for a valid Will, as the Willmaker’s signature was witnessed by just one witness, as opposed to two or more witnesses present at the same time which was required under the Act.
In admitting this informal document to probate and deciding that the informal document was intended by the Willmaker to be his Will, Gray J relied on the following facts and circumstances of the case:
- The informal document was prepared by the Willmaker himself, save for the witness’s signature;
- At the time the Plaintiff visited the Willmaker at the Alfred Hospital in the company of the witness, the Willmaker asked the Plaintiff to obtain paper and a pen so he could write a ‘Will’;
- The content of the informal document itself established that the informal document was a document prepared by the Willmaker that expressed and recorded his testamentary intentions on the basis of the below:
- its title “Will”;
- its provisions that previous wills are null and void and prior testamentary dispositions are revoked; and
- its appointment of trustees to the Willmaker’s estate; and
- its substance of the disposition in the Will and the way it differs from the Willmaker’s penultimate will.
- Although two of the beneficiaries affected by this application were infants at the time, the Court held that the evidence in favour of admitting the informal document to probate in this case was so strong that the consent of such beneficiaries was of somewhat marginal significance.
The citation for this case is Re Kalenyouk [2024] VSC 390.
How to Probate an Informal Will?
According to Rules 2.08 and 2.09 of the Supreme Court (Administration and Probate) Rules 2014 (Vic), the Court can accept an informal document if it is satisfied that:
- The person who is trying to probate the informal Will (propounder) must show in their affidavit that the Willmaker ‘intended’ the document to be their Will;
- The propounder has received consent from all affected persons, provided that estate’s value is in excess of three (3) million dollars as at 26 June 2024;
- If consent isn’t obtained, then the application must be reviewed by a judicial officer of the Court.
Conclusion
As shown by the case discussed above, the Court considers many factors before deciding to accept an informal document as a Will.
The process of proving an informal document as a Will can be expensive, lengthy and stressful for your intended beneficiaries. Our article emphasises the importance of ensuring that you have a valid Will in place which clearly expresses your wishes and that it meets the legal requirements outlined in the Act.
iWills Legal has extensive experience in all matters relating to informal wills. If you need assistance in relation to an informal document or would like to find out how our iWills Legal can assist you, please do not hesitate to contact us today on 03 9598 9489.
