Even when a Will doesn’t meet the strict requirements of Victorian law, in some circumstances it will be admitted to probate
With the strict requirements to ensure a Will complies with Victorian law and that it’s properly executed, any irregularity presents a significant potential hurdle. But in some circumstances, a Court may accept an Informal Will, allowing the executor to finalise and distribute the estate.
What is a Will?
A Will sets out an individual’s testamentary wishes.
It must be in a form of document. The document may be in writing, although the Wills Act also allows other forms of documents, including any:
- Graph or drawing
- Other device in which sounds or other data (not visual images) are embodied and capable of being reproduced
A Will must be executed according to legal requirements to be valid. In Victoria, the legal requirements for a validly executed Will are that the Will:
- Is in writing and signed by the Will-maker (the testator) or by some other person in the presence of and at the direction of the testator;
- The signature is made with the testator’s intention of executing a Will;
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- At least two of the witnesses attest and sign the Will in the presence of the testator but not necessarily in the presence of each other
However, there are instances where the deceased can leave behind an Informal Will.
What is an Informal Will?
An Informal Will is a document that is intended to be the deceased’s testamentary wishes, however it does not comply with the legal requirements for the execution of Wills.
What are some examples of Informal Wills?
Some examples of Informal Wills include:
- The deceased provides instructions to the solicitor to prepare a Will, but passes away before signing the Will
- The deceased leaves a handwritten note setting out their testamentary wishes
- The deceased leaves a tape recording or video recording setting out their testamentary wishes
- The deceased leaves a handwritten note with instructions to the solicitor to update their Will, but passes away before the updated Will or codicil can be signed
- The deceased leaves their testamentary wishes in a note on an iPad
Can an Informal Will be admitted to probate?
When a validly executed Will is admitted to probate (subject to meeting the probate application requirements) the Court accepts that the Will is valid and then the executor can finalise and distribute the estate. However, admitting an Informal Will to probate is complex because its validity is usually in question.
For an Informal Will, an applicant (the executor or a person with sufficient interest in the estate) can still make an application to the Court for an Informal Will to be admitted to probate (or for letters of administration). However, there are certain requirements to be met:
- There must be a document;
- The document must record the deceased’s testamentary intentions; and
- The document must have been intended by the deceased to be their last Will and testament
Generally, the first requirement is easily met. It is the second and third requirements that are often a hurdle.
The applicant who makes the application for probate (or letters of administration) is faced with a considerable task of investigating and gathering all the available facts. The aims are to put the Court in the best position to work out:
- The likely intentions of the deceased; and
- Whether the Informal Will was intended by the deceased to be his or her Will
When considering making such an application, there are some questions to consider (in respect of the deceased’s intentions):
- How did the deceased treat the document?
- Was the document kept with other important papers?
- Who was the document given to?
- How much time elapsed between the preparation of the document and the death of the deceased?
- Had the deceased seen the document before death? If not, why?
- Were there any statements made by the deceased after the preparation of the document which are consistent / inconsistent with the document?
- What was the reason for the informality of the document?
- Was it impossible or impractical for a formal Will to be created in the circumstances? For example, was the document created before an emergency procedure or was it intended to be a “stopgap” Will?
How can MDW help?
Informal Wills can cause significant stress to executors (or administrators) and beneficiaries of deceased estates. It’s a good reminder to ensure that when making a Will, you invest some time and money in making sure it’s done properly.
However, if a Will doesn’t meet legal requirements, all is not lost. With careful planning and organisation, it’s often possible to convince a Court to grant probate for an Informal Will. The trick is to seek the help of an experienced Wills and Estates lawyer as soon as possible. Contact us to learn more about our legal services for probate and Informal Wills.
This article was written by Wills & Estates Lawyer, Linda Luc.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can receive from marshalls+dent+wilmoth and other relevant experts.