The importance of having a formal Will
Many people assume that any document they write out and sign is capable of being upheld as a valid formal will. While it is possible for informal documents such as notes, letters and “DIY” Wills to be upheld as a valid will there can be many unintended complications with such documents after you have passed away.
In WA the Wills Act 1970 (WA) (“Wills Act”) governs the formalities needed to make a valid will. These formalities include a will being in writing, being signed by the willmaker and having 2 witnesses. These formalities appear to be simple but are often overlooked when wills are made at home or otherwise without the advice of an experienced lawyer.
After the willmaker has passed away, the person seeking to prove the will (usually the executor or a close relative) often must apply for a grant of probate of the Will from the Supreme Court (depending on the assets of the estate). The process of applying for probate involves the Supreme Court making a determination on the validity of the Will. This process is generally known as probate in common form and applies where there is no real contest about the validity of the will or the capacity of the person to make the will. The will must still be proved to the Court’s satisfaction, but the process is conducted on the papers, that is there is no trial or contested hearing.
During this process, the Court looks to the formalities in the Wills Act and whether the Will is properly made. Wills that don’t comply with the terms of the Wills Act may not be upheld as valid. This would mean the willmaker’s wishes are not taken into account in dealing with their estate.
There is a part of the Wills Act which allows for documents which haven’t been made in accordance with the formalities to be upheld as valid wills if the Supreme Court is satisfied that person intended the document to constitute their will. This part of the Wills Act works to ‘save’ documents which might otherwise not be considered valid. In reaching its decision, the Court will rely on other evidence about the testamentary intentions of the willmaker including evidence of statements made by the person.
The problem with relying on this power in the Wills Act is that it involves unnecessary expense and stress for the person seeking to prove the Will after you have passed away and makes it less likely for the Will to be upheld.
Some other informalities which can cause serious problems for the person seeking to deal with the estate include:
- the will not being dated;
- the will only having one witness;
- the will having different versions or spellings of the willmaker’s or executors’ name;
- the will having loose pages;
- there being multiple signed copies of the same will;
- there being only copies and no original of the signed will; and
- there being handwritten changes or amendments made over top of the will
The above are just some examples of the problems we regularly encounter when dealing with homemade or ‘DIY” Wills. Each of these problems can be overcome in the right circumstances and with the right evidence, however, the cost of doing so is far greater than dealing with a properly made will and raises the potential for a challenge from an unhappy party.
If the will cannot be proved by application to the Supreme Court in the uncontested jurisdiction, then the will must be sought to be proved in a process known as solemn form proceedings. These proceedings often involve a party who seeks to disprove the will on the basis that it is not properly made or there was no capacity on the part of the person to make the will (we find these often go hand in hand). Seeking probate of the will in solemn form can be an extremely expensive exercise and involve a lot of stress for the people involved in the process. It can involve a fully-fledged trial process. Even if a party succeeds in proving the Will in solemn form, that can be cold comfort if it comes at the end of a legal battle that has consumed a large part of the estate in costs and resulted in fractured family relationships.
To prevent the risk of unnecessary costs and the will not being upheld after you pass away, will makers should steer clear of DIY wills and other informal or homemade documents. Wills should be made with care and with the assistance of an experienced lawyer who can ensure the little (but important) things are done right.
If you have an informal will yourself or think you are dealing with an informal will of a loved one, then please contact Lynn & Brown Lawyers’ experienced probate and estate planning team on 9375 3411 for an obligation-free discussion to see how we can assist.
About the author: This article was written by the associate, Matthew Gunn. After completing a double degree Bachelor of Arts (Politics and International Relations) and a Bachelor of Law, Matthew was admitted into the Supreme Court of Western Australia in 2016.