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Informal Wills: Why Pay A Lawyer When I Can Do This Myself?

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By Paul Watkins, Principal, MST Lawyers

There are strict formalities for a valid Will. However, in some instances, the Court can admit to probate an informal document that does not comply with these strict formalities.

For the court to allow a departure from a valid Will, the Court must be satisfied on the balance of probabilities that an actual document exists, that the document expresses or records the testamentary intentions of the deceased and that the document was intended by the deceased to be his or her Will.

In this case, Mr Williams died on 12 October 2017 at the age of 89 years. The deceased never married and had no children. He left a formally executed Will dated 20 May 2007, but he also left a handwritten document dated 30 August 2017 headed “Change of Will”.

A dispute arose between his nieces and nephews as to whether the handwritten document operated as a codicil to his formal Will. The Supreme Court found that it did.

When the deceased was advised that he should see his lawyer to change his Will, he responded, “No, it is too expensive”. He went ahead and prepared the informal document and left it in a sealed envelope marked “Private Matter” on his dining table.

The informal document markedly changed the disposition of his estate. The Court heard argument over whether or not the deceased intended the informal document to operate as his Will, or whether it was a draft.

It was also necessary for the Court to be satisfied that the deceased had testamentary capacity when he made the informal document.

While the deceased thought going to his lawyer was too expensive, in preparing his own document, Mr Williams delayed the administration of his estate for two years and resulted in an even more costly Supreme Court trial. This, no doubt, adversely affected the relationships amongst those left behind as they fought to contest the informal document.

This case highlights that informal Wills can be accepted by the Court. However, in the same breath, it also reinforces the value of obtaining legal advice in preparing and executing Wills. By not doing so, not only do you pass up of the opportunity to implement the many structuring opportunities that may be available to your family after your death, but you also leave open the possibility for litigation and worse still, that your true testamentary wishes may not be followed.

If you have any questions about your Will or any Estate Planning matter, contact our Wills & Estates team by email or by telephone +61 3 8540 0200.