An invalid will can cause heartache, con­fu­sion, frus­tra­tion and expense to those left behind when a loved one pass­es away.

Some­thing as sim­ple as for­get­ting to sign a doc­u­ment or not mak­ing time to vis­it a solic­i­tor to change the terms of a will, can be seem­ing­ly small over­sights which cause sig­nif­i­cant issues if a per­son pass­es away unex­pect­ed­ly.

There are, how­ev­er, some sit­u­a­tions in which a seem­ing­ly-unof­fi­cial will may actu­al­ly be legal­ly accept­able.

While the legal­i­ties around prepar­ing and exe­cut­ing a will are large­ly tech­ni­cal, the leg­is­la­tion also allows for ‘infor­mal’ wills, which may not be bound by all of the expect­ed for­mal require­ments.

For exam­ple, if a per­son meets with their solic­i­tor and requests a change to their will, the solic­i­tor can write an ‘infor­mal will’ imme­di­ate­ly, before the orig­i­nal will has been for­mal­ly amend­ed and signed. This infor­mal doc­u­ment may not include all the tech­ni­cal ele­ments of a will, but may be legal­ly accept­able because it out­lines the client’s express wish­es. Should the client pass away before the orig­i­nal will is amend­ed and signed, the ‘infor­mal will’ acts as a legal alter­na­tive.

Where a dis­pute over a will ends up in court, Sec­tion 8 of the Suc­ces­sion Act 2006 gives the court the pow­er to con­sid­er the fol­low­ing with regard to ‘infor­mal wills’:

  1. Is there a doc­u­ment?
  2. Does this doc­u­ment record the inten­tions of the deceased as to what should hap­pen upon their death?
  3. Is there evi­dence of action or words in which the deceased made clear their inten­tion for this doc­u­ment — with­out any­thing addi­tion­al — to con­sti­tute their will?

It is always best to err on the side of cau­tion and ensure your will is prop­er­ly pre­pared and kept up to date with regards to your wish­es. How­ev­er, the legal recog­ni­tion of an ‘infor­mal will’ means that there is a mech­a­nism for allow­ing lawyers to quick­ly give effect to your wish­es, even though this may not be in the form of a print­ed will.

For fur­ther infor­ma­tion con­tact Hadyn Ori­ti on ph 02 6583 0449.

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