The uncertainty of informal Wills

Often on the passing of a loved one we find they had typed up or hand written their own version of a document outlining their testamentary wishes.
The issue with such a document is the deceased failed to prepare a document which complies with the strict formal requirements for preparation and execution of a Last Will and Testament as dictated by the succession laws.If the document prepared fails to comply with the requirements of the applicable legislation the Will is deemed to be null and void.

However there may be mechanisms for a Court to overlook the shortcomings based on evidence put before it proving the document was intended by the deceased to be their last Will, or to alter or revoke a previous Will in full or in part. This is document will forthwith be known as an Informal Will.

This should not be taken as a suggestion for people to put together a document at home as recent cases have shown it is not easy to convince a Court to accept an informal document as a Last Will. Further it is extremely costly to achieve such an outcome… way more than the couple of hundred dollars it may cost to have a Will professionally prepared.

In a recent decision from a Victorian Supreme Court in the matter of Sultanova v Bolgarow [2019] VSCA the Court found that an informal document embodied the testamentary wishes of the deceased. The document was prepared by a solicitor for their client, with the contents of
the document then summarised to the client and the client confirming to the solicitor that the
document sounded like it was “exactly what she wanted” and was “settled”. The final document was
never signed by the willmaker before her passing as the solicitor was unable to see her before she
passed. This was an unusual case as the document was never seen or read by the client, nor read to the client, but was still found to embody her wishes as an informal will.

However, this decision must be contrasted to the recent decision of the Supreme Court of NSW in
Re Estate Miruzzi, deceased [2018] NSWSC Similarly, a client gave instructions sufficient for a
will to be prepared, but the client cancelled the appointment to sign the document due to illness, from which the client never recovered and passed away before being able to attend an appointment to sign off on the document.
The failed attempts to attend to sign the document were not satisfactory to the Court to confirm an intention that this document was intended to be adopted as the Last Will.

While both cases have very similar facts, comparing the decisions in the two cases shows that it is
difficult to be certain whether a Court will find a document to be treated as an Informal Will where it fails to comply with the formal requirements of legislation.

Due to the important nature of a Last Will and Testament, it is prudent to ensure the document
prepared will be accepted, so the wishes of the deceased are able to be followed by those left
behind. Care should be taken to ensure that any uncertainty is avoided by preparing a Last Will and
Testament in compliance with legislation and that proper legal advice and guidance is sought from your lawyer.

Related Posts

Recent Articles

Deposits in Queensland Conveyancing transactions
May 3, 2021
Insurance – where does the risk fall after signing a contract?
April 3, 2021
Stamp duty and buying a property
March 3, 2021

About Baldwins Lawyers

Baldwins Lawyers provides conveyancing services and assists with family law, estate planning and probate matters across Queensland, including Gympie, Sunshine Coast, Brisbane, Gold Coast and also across New South Wales. Gympie based Solicitors – Our aim is to provide quality legal services and quality conveyancing services at fair and realistic prices.