Informal and Formal Wills

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

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:

  1. It must be a document;
  2. It must claim to represent the wishes of the Willmaker; and
  3. 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.

Therefore, the Court considers various types of evidence that may indicate the Willmaker’s intention, as demonstrated in the following Victorian case of Robin v Jones [2015] VSC 222:

Facts:

  • On 8 March 2013, Bruce Andrews (Bruce) committed suicide as a result of a medication overdose.
  • At the time of his death, Bruce left an unsigned Will dated 26 June 2012 (the informal document).
  • The Bruce’s solicitor confirmed that Bruce had approved the informal document prior to his death.
  • The value of the Bruce’s estate (Estate) at the time of his death was estimated at over $13millon and the value of his superannuation fund was estimated at $615,094.
  • One of the beneficiaries of the Estate made an application for a grant of probate of the informal document pursuant to section 9 of the Act.
  • Based on the facts and circumstances of the case, the Court was not satisfied that Bruce intended the informal document to be his last will and refused to admit the informal document to probate.

Considerations:

  • It was clear to the Court that there was a document that records testamentary intentions of Bruce (1st and the 2nd criteria of the test set out in Hatsatouris have been met).
  • However, the Court, in reaching its determination that the 3rd criterion was not satisfied, considered the following facts and circumstances of the case:
    • Whether Bruce had sighted and read the informal document, acknowledged verbally/writing that it embodied his last will and evidence to his solicitor?

      The Court held that there was no evidence of the actual words spoken by Bruce, including whether Bruce confirmed that he wished to execute the will exactly as drafted.

    • Given Bruce was a person who talked about making wills, whether there was any evidence that Bruce told the beneficiary that he had finalised the will?

      The Court held that there was no evidence of Bruce stating to anyone that he had finalised the changes to his will and that this supported the Court’s conclusion that Bruce himself did not consider that his will was finalised.

    • Whether Bruce had testamentary capacity?

      The Court considered the evidence of the lay witnesses which supported the conclusion that Bruce was very erratic and mentally unstable prior to his death.

      In this case, the Court did not rely on the evidence provided by Bruce’s solicitor as he provided no factual basis for his conclusion that Bruce would have had the requisite testamentary capacity at or around the time he made the informal document.

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 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.