When is a will a will?

What happens when a testator dies and their will has not been validly executed? For instance, the testator may have forgotten to sign the will or died before a drafted will could be signed, or the testator’s wishes were recorded in an informal way, such as on the back of an envelope.

In these circumstances, the court may admit such a document to probate – provided it is satisfied that the testator intended that document to be his or her final will.

1. What are the statutory requirements for a valid will?

In Victoria, the statutory requirements of a validly executed will are contained in the Wills Act 1997 (Vic) (Act). Section 7 of the Act requires that for there to be a valid will, it must be in writing and signed by the testator in the presence of two or more witnesses at the same time, who must sign the will in the presence of the testator.

In general, the court will require compliance with these conditions to admit a will to probate.

2. Informal wills

If the requirements for a valid will are not met, section 9 of the Act states that the court may admit an informal will to probate, provided it is satisfied that the deceased intended the document to be his or her will.

Accordingly:

  • there must be a document;
  • the document must express the testamentary intentions of the deceased; and
  • that document must have been intended by the deceased to be his or her final will.

The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities.

2.1 What constitutes a ‘document’?

For the purposes of section 9 of the Act, a ‘document’ includes written material or other various media other than in written form.

In IMO the estate of Bruce William Standish [2018] VSC 629, the testator had recorded his instructions for a new will on his mobile phone but died before he could sign a will in written form. The audio recording of instructions given by the deceased was a ‘document’ for the purposes of section 9 of the Act.

2.2 Does the document express the testamentary intentions of the deceased?

For a document to express the testamentary intentions of the deceased, it must say or be an expression of what the deceased intended be done with his or her property upon his or her death.

2.3 Was the document intended by the deceased to be his or her final will?

It must be shown that the deceased intended that there be no alteration or reservation with respect to the document. The document must express the concluded testamentary intentions of the deceased, rather than express preliminary, tentative or incomplete expressions of his or her testamentary intentions.

In the case of the Estate of Elzow [2018] VSC 498, an informal will that had not been seen or executed by the testator was admitted to probate. Justice Lyons held that there was no absolute rule that a document must have been said or read to a person before a court could be satisfied that the person intended the document to be his or her will. In that case, His Honour accepted that the solicitor who prepared the new will discussed the terms of that will with the deceased, and that the deceased clearly indicated she wished to adopt the terms of the new will, but died before the will could be signed.

When an application is made to the court for orders admitting an informal will to probate, the court may have regard to, among other things:

  • whether the document has been signed and dated – if so, in most cases, the implication is that the person intended the signature and date to give testamentary effect to the document in its final form;
  • whether there have been changes made to the document which may indicate that the deceased was giving further thought to his or her testamentary disposition and therefore indicative of the document not being his or her final will; and
  • the time when the document was made and the deceased’s state of mind leading up to the preparation of the document.

The court may also receive direct evidence of statements made by the deceased and evidence surrounding the making of the document, together with statements or evidence of actions of the deceased regarding the document after it was prepared.

It is important to bear in mind that the greater the departure from the requirements under section 7 of the Act, the more difficult it will be to satisfy the court that the deceased intended the relevant document to be his or her final will.

3. Conclusion

Although the court can admit informal wills into probate, we recommend that a will be properly drawn or checked to ensure compliance with the Act – and to avoid the need for an application to be made to admit an informal will to probate. In doing so, it will reduce the risks of the testator’s or testatrix’s testamentary wishes not being given effect to, in the event that his or her will is not properly executed so that the court does not make an order admitting an informal will to probate.

Disclaimer
This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

Queries

For further information please contact the author or any member of our Litigation or Wills & Estates team

The Authors

Stephen Sawer

PARTNER, MELBOURNE

Evelyn Ooi

SENIOR ASSOCIATE, MELBOURNE