Informal Wills - What's the Risk?

Monday August 6, 2018

Informal Wills - What's the Risk?

While Victorian Courts may be showing an increasing willingness to accept informal Wills, preparing your own Will without legal advice remains fraught with danger. If your Will doesn’t conform to the strict requirements to be considered valid, it may be considered an ‘informal Will’. 

In order for an informal Will to be accepted, the Court must be satisfied that the Will-maker intended the document to be their last Will and testament. This can be difficult to prove and these proceedings can be lengthy, acrimonious and expensive.

Victorian Courts have traditionally been reluctant to accept informal Wills in most circumstances. However, two recent decisions appear to indicate a change in that trend.

In Willis v McKenzie[1], the Supreme Court accepted an informal Will made by a person suffering from chronic schizophrenic disorder. The Will was in the form of a ‘Will kit’ and had only one witness; a technician who had been at the deceased’s home at the time.  The evidence of the deceased’s treating doctor was paramount in assessing her capacity.

In Re White[2], the Court accepted an informal computer Will, found on the deceased’s computer. In assessing the informal Will, the Court considered how the document was labelled and references in the document to ‘my final wishes’ and that the document was thorough, methodical and precise in relation to share and figures.

In addition, a recent Queensland case has highlighted the form Wills might take in 2018; in Re Nichol[3], an informal Will that consisted of an unsent text message was accepted by the Court. The message was composed shortly before the Will-maker took his own life, did not appoint an executor and was not signed.

Whilst the Courts may be open to considering informal Wills, ensuring your Will is valid and conforms to the requirements will afford you peace of mind and save thousands of dollars in potential legal costs.

If you are concerned about the validity of your Will, please contact our Wills and Estates team to have it reviewed.

Alternatively, if a loved one passes without a formal Will and you are not sure how to proceed to administer their estate, seeking legal advice about your options at an early stage is essential. With proper advice and careful application, you may be able to ensure that the wishes of your loved one, in whatever form they take, can be upheld.

[1] Willis v McKenzie [2018] VSC 325
[2] Re White; Montgomery & Anor v Taylor [2018] VSC 16
[3] Re Nichol; Nichol v Nichol [2017] QSC 220