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What is an Informal Will?

Briefly, a formal Will refers to a Will which meets certain legal requirements which are outlined in the Wills Act 1970. Some (but not all) of these requirements are:

  • your Will must be in writing;
  • your Will must be signed by you in the presence of two adult witnesses; and
  • your Will must revoke any former Wills.

A document may record a person’s testamentary intentions and not meet these requirements. Such a document is referred to as an Informal Will.

The Court may dispense with formal requirements in certain cases. For example, if the document which seems to be the Will of a deceased person has not been executed in the manner required by the Act.

The Court must be satisfied on a balance of probabilities that the person intended for that document to constitute his /her Will. When considering if a document is an Informal Will, the Court will consider any relevant evidence relating to the testamentary intentions of the person and the manner of execution of the document. If the Court is satisfied that the Informal Will is the Will of the deceased then it will be valid as if it had complied with the formal requirements from the onset.

However, there has been a number of Supreme Court decisions that show how difficult it is to prove an Informal Will. Proof of intention to make a Will is simply not enough. The evidence must show that the deceased intended for that specific document to be his/her last Will.

Honourable Justice Hill considered the legal principles in Crisp v Australian Rotary Health Research Fund [2019] WASC 486 at paragraph 9 -11:-

‘For a document to constitute a Will, it is necessary that there be cogent evidence that the document embodied the deceased's testamentary intentions and that the draft was adopted and authenticated by the deceased. This is true for documents invalid by reason of there being only one attesting witness to the document.

In forming its view, in addition to the document said to constitute the Will, the court may have regard to any evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence of statements made by the person.

It is not, of itself, sufficient that the document represents the deceased's testamentary intentions. It is necessary that the document is intended to be the legally operative act which disposes of the deceased's property on his or her death.’

In this case, the document was signed by the deceased but was witnessed by only one witness and not two as required by law. The Court considered whether:

  1. the document purports to embody the deceased's testamentary intentions; and
  2. the deceased intended that the document constitute his will.

The deceased was estranged from his family for a number of years and bequeathed his entire estate to the Australian Rotary Health Research Fund. After considering the evidence Honourable Justice Hills found, on the balance of probabilities, that the disposition embodied the deceased's testamentary intentions.

Secondly, the document was prepared by a lawyer on instruction from the deceased and was headed “Last Will and Testament of …”. The Court was satisfied that the intention of the deceased was that the document have effect as his Will.

Unfortunately, not all cases are as straight forward as this one. At Butlers, we can help you in assessing the evidence and assist you with preparing an Application to the Supreme Court, if you believe that someone who you know, has left an Informal Will.

 

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