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WHAT IS AN INFORMAL WILL?

A Will is a legal document which sets out the last testamentary intentions of a person and which meets certain legal requirements as described in the Wills Act (WA).  When a document is created that does not meet the formal legal requirements but records a person’s testamentary intentions, this can constitute an informal Will.

Section 32 of the Wills Act provides for circumstances in which a document purporting to be a Will but not meeting the formal requirements, can constitute a Will.  In some circumstances, if the Supreme Court is satisfied that the person intended the document to constitute their Will it can be accepted as the person’s Will.

When considering if a document constitutes a person’s final testamentary intention and is an informal Will, the court will consider these factors but they are not all required for the document to be a Will.  Each case will turn on its own circumstances.

  1. Whether the document contained the words clearly showing that the Will maker intended the document to be their Will.
  2. Clearly identified the testator.
  3. Appointed a person to manage the estate / an executor.
  4. Dealt with the distribution of the testator’s property in the event of their death.

Whilst a document may be able to be proven to be the last Will and Testament of a person even if not executed properly, this is most definitely not the preferred outcome.

 

DIFFICULTIES OF INFORMAL WILLS

One of the major issues with informal Wills is that there must be evidence the person intended this document to be their Will.  However, if a person intended the document to be their Will, why was it not executed and prepared properly.

In some instances it may not be possible for a person to execute a formal Will.  Below is a list of circumstances in which an informal Will was taken to be the Will of a person:

  • An unsigned Will kit document in which the testator wrote the words “I declare this to be my last Will and Testament” where the document was written days before their death and the testator wrote on the document that even though it hadn’t been signed properly they hoped it would be ok;
  • A note on the testator iPhone;

As there are cases where a document has been proven to be a testator’s Will, there are many more where that has been found not to be:

  • Where instructions were given to a solicitor, drafts prepared, minor amendments made and the testator died before seeing the amendments.

The Supreme Court was not convinced that the deceased could have intended the document to be their last Will as they had not seen the final document.

  • A Will which the testator had drawn by a solicitor several years prior and the deceased had kept in a drawer in the house but never signed;
  • A Will kit document written out by a deceased’s son on his instructions and left with the deceased to be signed.  The document was stored with the deceased’s other important documents but never signed.

Lynn & Brown Lawyers have experience in assisting people where it is purported that a person has left behind an informal Will. If you find a document left behind by someone which you think may be their last Will and Testament, please contact one of our estate law practitioners.

 

 

About the authors:

This article has been co-authored by Alyce Martin and Steven Brown at Lynn & Brown Lawyers.  Alyce is an experienced Perth lawyer and an associate and practices in the areas of commercial law and probate & Wills.  Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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