What is an Informal Will?
A Will is a legal, written document which sets out, among other things, how you want your Estate to be administered when you die.
In order to constitute a valid Will, your Will must meet certain legal requirements which are outlined in the Wills Act 1970. Some (but not all) of these requirements are:
Your Will must be in writing.
Your Will must be signed by you in the presence of two adult witnesses.
Your Will must revoke any former Wills.
In some circumstances, a document is drafted that may not meet the formal legal requirements for a Valid Will. but records a person’s testamentary intentions nonetheless. In these circumstances, such a document can constitute an informal Will.
A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by the Act, constitutes a Will of the person if the Supreme Court is satisfied that the person intended for that document to constitute that person’s Will.
When considering if a document is an Informal Will, the court will consider any evidence relevant relating to the testamentary intentions of the person and the manner of execution of the document.
There have been a number of recent Supreme Court decisions that show just how difficult it is to prove an Informal Will.
Proof of intention to make a Will is simply not enough. The evidence must show that the deceased intended for that specific document, to be his/her last Will.
David is young and healthy and recently he decided to make a new Will, just in case. David is very sensible. He decides that he wants to leave his entire Estate to his nieces and nephews equally. David is very excited and tells his entire family, “I am leaving my entire Estate to my nieces and nephews equally.”
David even goes to see a lawyer and tells the lawyer, “please draft my Will, I want to leave my entire Estate to my nieces and nephews equally.” David’s lawyer promptly drafts his Will, and sends a draft copy for David to review.
David receives the draft Will, looks over it, and puts it in his drawer. David is very busy and he will look at his Will tomorrow.
Unfortunately, David dies unexpectedly, the next day.
So, is there an Informal Will?
In this case, probably not. There is no evidence that exists that proves that David intended for that draft Will to be final Will. Yes, there will be plenty of evidence of his testamentary wishes, and yes, the draft Will was prepared in accordance with those wishes, but there is no way to know that David intended for that particular document to constitute his Will.
It is difficult to meet the test of an Informal Will, but not impossible.
At Butlers, we can help you in assessing the evidence and assist you with preparing an application to the Supreme Court, if you believe that someone who you know, has left an Informal Will.