Informal Wills (Vic)

An informal will is a document that an individual intends to be their final testamentary wishes but that does not comply with the requirements for a will to be valid under the Wills Act 1997. This article deals with informal wills in Victoria.

What is a formal will? 

In Victoria, for a will to be executed correctly and validly, it must comply with the following requirements.

1. The will is in writing and is signed by the testator, or by some another person in the testator’s presence and at their direction;
2. The signature is made with the intention by the testator of executing a will, whether or not the signature appears at the foot of the will;
3. The testator’s signature is made or acknowledged in the presence of two or more witnesses who are present at the same time; and
4. At least two of the witnesses attest and sign the will in the testator’s presence but not necessarily in the presence of each other.

Wills that do not conform to formal requirements

Under Section 9 of the Wills Act 1997, the Supreme Court of Victoria can admit a document to probate even if the document does not comply with these requirements in certain circumstances. The court will only do so if satisfied that someone intended the document to be their last will. The court will look at any evidence relating to how a document was signed, at evidence of a person’s testamentary intentions and at their capacity. 

In the 2015 Victorian Supreme Court decision of Robinson v Jones, McMillan J held that for a document to be admitted to probate under the Act, the court has to be satisfied that the following criteria have been fulfilled:

1. There is a ‘document’ (this includes a disc, tape, soundtrack or other device); 
2. The document expresses or records the testamentary intentions of the deceased; and 
3. The document was intended by the deceased to be their will. 

It is the responsibility of the person making the application to provide evidence and prove that the informal will document was intended by the deceased to be their will and that it expressed their testamentary intentions. The informal will document would have to be investigated. Evidence can be gathered from third parties if they can speak to the person’s intentions and their capacity at the time the document was made. 

What form can informal wills be in?

An informal will can be in a number of forms. Some examples of informal wills include a handwritten note by the deceased setting out their testamentary wishes, a video recording or voice recording of their testamentary wishes, a typed document found on a person’s computer or a note in a persons phone.

An informal will can also be found to exist where a person gives a solicitor instructions to prepare a will and the will is drafted but never signed.

Informal wills that are unsigned

Courts can find it difficult to dispense with the requirement of a signature in relation to a prepared but unsigned will, primarily because the will itself has not been signed. In the case of Robinson v Jones [2015] VSC 222, a person arranged for a solicitor to prepare a will and a draft was prepared. The draft will was forwarded to the client for their approval, and they were advised that once approved it could be arranged for the will to be executed. In this case, the court refused to admit the unsigned will to probate because it was not satisfied the deceased intended this to be their last will when they had not approved it.

Where you have arranged for a will to be drafted, it is recommended you approve and sign it as soon as possible to avoid the situation where your testamentary wishes cannot be admitted to probate.

Digital wills

With electronic devices becoming more prominent in our society, the likelihood of laptops, phones, and iPads containing a testamentary document is increasing. An executor should always obtain access to all of a deceased person’s devices and complete a thorough search of them to see if any informal will or other testamentary document has been stored there.

The case law surrounding digital wills is growing. In the 2018 Supreme Court decision of Re White; Montgomery & Anor v Taylor, the deceased made an informal will document on their computer, on the same date that they died. It was held that the deceased typed the informal will, had testamentary capacity and intended the document to have the effect of a last will. The document was therefore admitted into probate.  

Informal wills that do not name an executor

If an informal will names an executor, that person is responsible for applying for a grant on the informal will. If an informal will does not name an executor, the person with the largest claim to the estate should act as executor under the intestacy provisions of the Administration Act 1958.

If you locate an Informal Will of a deceased and require assistance with same, please do not hesitate to contact Armstrong Legal.