Informal Wills – What are they, and can they still be effective?

In an ideal world, everyone who prepares a Will has it signed properly in the presence of witnesses, there are no hand amendments made to the document, and it is all dated and finalised in accordance with the Court’s usual requirements for a formal Will.

However, in some circumstances, and for various reasons, a Will may not be executed properly which means it could be considered an ‘informal’ Will. Depending on the evidence surrounding how and why the Will was not executed properly, the Victorian Supreme Court still has discretion to grant Probate of Wills that don’t meet the normal requirements.

What are the requirements for a Will to be considered valid?

In Victoria, Wills are governed by the Wills Act 1997 as well as the Administration and Probate Act 1958.

In order for a Will to be executed in a manner that means it is valid and legally binding in Victoria, pursuant to section 7 of the Wills Act 1997 it must:

The two (2) adult witnesses must see the Testator sign the Will, and then sign the Will in the presence of each other and the Testator.

It is also worth noting that the Testator must be over the age of 18 years, and must have testamentary capacity (i.e., they must understand the nature and effect of making a Will, have an understanding of their assets and liabilities, and be aware of the potential for claims to be brought against their Estate by certain people if not adequately provided for in the Will).

Examples of informal Wills

A Will which does not strictly meet the abovementioned criteria would be considered an ‘informal’ Will.

For example, the following situations would arise to a Will being deemed informal:

• The Will was only signed by the Testator in the presence of one (1) adult witness;
• The Will was only signed by the Testator, and no witnesses whatsoever;
• The Will was not signed by the Testator;
• The Will was signed in accordance with the usual requirements, but a subsequent amendment was made to the original Will which was not executed or witnessed in accordance with the requirements.

A Will may also be considered informal if it is not in writing (e.g., it is an audio or visual recording of the Testator), or if it was signed by two (2) adult witnesses but evidence comes to light which shows that they were not in fact all present at the same time and/or did not see each other sign the Will.

From experience, we frequently see informal Wills take the form of suicide notes, in which someone has tried to appoint an Executor, or dispose of their property, within the note as part of their final wishes.

We have also seen informal Wills take the form of Word documents which were only electronically signed by the Testator and not witnessed by anyone, and have seen informal Codicils (i.e., a document prepared after executing a Will to amend a clause of the Will) handwritten and attached to a Will but not witnessed (or only witnessed by one other person).

How can you obtain Probate of an informal Will?

Just because a Will was not executed in accordance with the usual requirements does not automatically preclude it from being admitted to Probate. To learn more about Probate and when it is required, click here.

The Supreme Court has discretion to consider such Wills, and the circumstances surrounding the preparation and execution of same, depending on the evidence provided. This power comes from section 9 of the Wills Act 1997.

The Court, or the Registrar of Probates, must ultimately be satisfied that the Testator intended for the informal document (or for the alteration to a valid original document) to be, or form part of, their Will.

In summary, if admitting an informal Will to Probate, the Court would require evidence of the following:

• Evidence establishing that the Testator intended for the informal Will to operate as a valid legal document
  • This evidence could be given by the Executor, or a witness (if only one person witnessed the Will), or someone the Testator spoke to about their Will – Ideally this should be someone that does not stand to benefit from proving the informal Will
• Evidence as to why the Testator did not execute the Will in accordance with the usual requirements
  • For example, did they have prior experience of signing a Will and therefore would have known what the usual requirements are? Was there some urgency to execute the document which meant they couldn’t wait to find two witnesses?
• Evidence establishing that the Testator had testamentary capacity at the time of signing the informal Will
  • This evidence is mandatory in all matters when trying to have an informal document admitted to Probate – Ideally, this evidence would come from the Testator’s usual treating medical physician
• If the informal Will was witnessed by one (1) witness, evidence from that witness setting how, where, and when the Will was signed by the Testator, and explaining why no second witness was present at the time of signing
• If the Will was only signed by the Testator and was not witnessed by anyone else, evidence that the deceased’s signature on the informal Will matches the signature they used during their lifetime

All evidence should be put before the Court in the form of Affidavits from the relevant people.

Key Takeaways

Nowadays, many people are tempted to prepare their Wills at home using a DIY kit or online service. Whilst these options can be cost-effective, efficient, and convenient, there can be risks that they are not executed correctly due to a lack of guidance, instructions, or oversight.

By having your Will prepared by one of our expert Wills, Estates, and Succession Planning lawyers, you will have peace of mind that your Will is valid and legally binding.

If you, or someone you know, has recently prepared a Will and think it may be invalid or deemed informal for any of the above reasons, a member of our team can assist with reviewing it and then preparing a valid Will if necessary.

Further, if someone you know has recently passed away and their Will does not meet the abovementioned requirements, our team is experienced and well-equipped to assist you and your loved ones with applying for Probate and administering the Estate, even if the Will is informal.

Further information

To get in touch with us, please contact the Wills, Estates and Succession Planning Team at Coulter Legal on (03) 5273 5273 or email info@coulterlegal.com.au.

To find out more, click here for our latest podcast episode.