1. What is an informal will?
1.1. An informal will is a document that doesn’t satisfy the legal requirements for a valid will pursuant to the Wills Act 1970 (WA). The legal requirements for the execution of a valid will are found in section 8 of the Act. For example, an informal will may be a document purporting to be a will that does not meet the formal witnessing requirements.
1.2. Where a document does not meet the formal requirements for a valid will, this does not mean it cannot be presented to the Court in an application for a Grant of Probate.
1.3. However, admitting an informal will for Probate is far more complicated than a valid will and requires consideration by the Court. This is much more costly and time consuming than applying for a Grant of Probate of a valid will.
2. Requirements for an informal will
2.1. Even though an informal will does not need to comply with the requirements of a valid will, there are still a number of considerations for determining whether the document can be accepted by the Court as an informal will.
2.2. For a document to be an informal will it must:
2.2.1. Be a document;
2.2.2. Record or express the testamentary intentions of the deceased; and
2.2.3. That document must have been intended by the deceased to be his or her will.
3. What is a ‘document’
3.1. The term ‘document’ is not defined in the Act. If we look to the Interpretation Act 1984 (WA) ‘document’ is defined in section 5 as ‘any publication and any matter written, expressed, or described upon any substances by means of letters, figures, or marks, or by more than one of those means, which is intended to be used or may be used for the purposes of recording that matter.’
3.2. This demonstrates a broad application of ‘document’, but what sorts of media have been considered documents for the purposes of informal wills?
3.3. In South Australia, the Supreme Court found a DVD containing video footage of the deceased addressing his testamentary intentions to be a document for the purposes of the equivalent South Australian Wills Act.
3.4. In In the Estate of Rohan Alexander Russell (Deceased), Stanley J noted the transcript of an iPhone recording was capable of being admitted to probate.
3.5. However, these are fairly unique instances. The most common document in informal will cases is a Word Document or computer file. Numerous cases have been successful in presenting a computer file as a ‘document’.
4. Express testamentary intentions
4.1. The second element for proving an informal will is establishing that the document expresses or records the testamentary interests of the deceased.
4.2. This can be demonstrated from the language used by the Deceased, such as referring to dispositions and intentions of the person’s estate. In the case of a computer file, it is also useful to look to the name of the file, for example in Re White; Montgomery & Anor v Taylor, a file named ‘George_White-Final_Will_and_Testament’ was found to hold the testamentary intentions of the deceased.
5. Intention for document to be will
5.1. The final requirement is that the decease intended ‘that particular document to be his or her final will and did not want to make changes to it’. The document cannot be a ‘draft’ or trial run, it must be intended to be viewed as their will at the time the document was created.
5.2. Whether this is satisfied depends on the facts and circumstances of each case.
5.3. One relevant consideration will be the testamentary capacity of the deceased at the time the document was prepared. Where a deceased lacked capacity to make a will, then the Court cannot be satisfied that he or she intended that document to be his or her will.
6. Signature
6.1. One question that is raised by a digital will, particularly a Word Document, is the requirement for the will to be signed by the testator. What happens where it is not signed, or the testator has used a ‘digital’ signature?
6.2. The fact a will is not signed is not an insurmountable obstacle to an informal will being admitted to probate. What remains the ultimate enquiry is whether the document and the circumstances of its making lead to the conclusion that the deceased intended that document to be their will.
7. How we help
7.1. We have experience in advising on informal wills and your prospects. Get in contact with us today if you have any questions about submitting an informal will.
7.2. It is worth noting that the process for proving an informal will can be a long and costly process at times. It is always ideal to have a valid will prepared in order to save time and money for your beneficiaries, as well as prevent conflict within the family.
7.3. We also have extensive estate planning experience and can help you to avoid these situations.