What is the legal status of any document that divides up an estate but doesn’t meet the standard required to be admitted to Probate? In NSW, this is referred to as an informal Will. In many cases, these documents can be used to successfully contest a formal Will.
What is an informal will?
The legality of an informal Will is outlined in the 2006 Succession Act (NSW), under Section eight. It states that there are circumstances where the Court can revoke a legal Will in place of an informal document that clearly sets out the deceased individual’s wishes.
If the Court believes that the document was intended as a Will, then it may be admitted to probate and used in place of the formal Will. There have been many instances in NSW where formal documents have been successfully contested due to an informal Will.
Does a will need to be signed to be valid?
Can an informal Will be accepted in Court?
In April this year, the NSW Supreme Court saw a case regarding the validity of an informal Will. The deceased had two Wills that named different Executors and distributed his assets in two separate ways.
The first Will was legally valid and signed on February 1 1994, naming the plaintiff as the Executor. It also stated the the deceased’s property ought to be divided between his sister and her seven children.
However, before the deceased passed away, he wrote an informal Will at some point during 2012. The document consisted of five pages in a notebook that was unsigned but laid out his wishes and included a trust fund that was not in the formal Will. It also named the defendant, the deceased’s sister, as the will’s Executor.
Despite being unsigned, the defendant stated that the deceased had intended for the document to be his Will. The Judge agreed that there was clear intentions that the document would be seen as valid by the Court.
“He handwrote, neatly and with some structure, a document which bespeaks an intention to make a Will, rather than a note which idly put present thoughts down,” stated Judge Stevenson.
In light of this, Judge Stevenson ruled that the informal will be admitted to probate as he was “comfortably satisfied” that the deceased had intended for the unsigned document to act as an informal Will.
In some cases, the document itself does not have to be written down on paper to be accepted and can take many forms.
What constitutes a legal document?
It is likely that a document with the intentions of being viewed as a final testament, will be legally valid.
Another recent case brought before the NSW Supreme Court was an estate that had been divided up on a video recording. While a video will is a legal way to determine the distribution of assets, there are still formal requirements that are outlined in the Succession Act.
The Court determined that the DVD recording did not align with the requirements of a valid Will. However, the Court ruled that the DVD did constitute a document and so could be considered an informal will under Section eight of the Succession Act.
Furthermore, the Court had no reason to believe that the deceased had been coerced into her video testament but had made the recording voluntarily.
“The absence of any objection from adverse interests, leaves no room for doubt about her knowledge and approval of the recorded dispositions, freely and voluntarily made,” stated Judge Lindsay.
Both of these cases highlight the importance of contesting a formal Will if a more recent document is available. As there is no definition for an informal Will in the Succession Act, it is likely that a document with the intentions of being viewed as a final testament will be considered valid.
In NSW, an informal document can replace a valid and formal Will, contact the lawyers at PK Simpson for advice on the process. Our lawyers operate under a no win, no fee policy, where we will absorb the up-front costs and subtract them from the final settlement. If you are unsuccessful, you will not be required to pay legal fees.
