The prob­lem with infor­mal Wills

In NSW, sec­tion 8 of the Suc­ces­sion Act 2006 (NSW) (Act) lets the Court dis­pense with the for­mal require­ments for a will. How­ev­er, it would be impru­dent to rely on this pro­vi­sion (and state and ter­ri­to­ry equiv­a­lents if you are out­side of NSW). It is always best to com­ply with the for­mal require­ments of mak­ing a will to ensure your estate is dis­trib­uted in accor­dance with your wishes.

Two cas­es high­light the dan­gers of fail­ing to sign a will and try­ing to seek pro­bate of an infor­mal tes­ta­men­tary documents. 

Infor­mal Wills

In NSW, the test for admit­ting infor­mal wills is as follows:

1. was there a doc­u­ment that did not com­ply with the for­mal require­ments of mak­ing a will;
2. did the doc­u­ment pur­port to set out the tes­ta­men­tary wish­es of the deceased; and 
3. did the evi­dence sat­is­fy the court that, at some rel­e­vant time the deceased demon­strat­ed the inten­tion that the doc­u­ment should, with­out more on his or her part, oper­ate as his or her will.

Weis­bord v Rod­ny; Rod­ny v Weis­bord [2018] NSWSC 1866

In this case, pro­bate had been grant­ed for the will of Mrs Rod­ny (the deceased in this mat­ter) dat­ed 19 Decem­ber 1997. How­ev­er, she had tak­en steps to make a new will in August 2008 (2008 Doc­u­ment), for which there was no record of it ever being signed. Mrs Rod­ny’s daugh­ter, Jeanette brought a claim seek­ing revo­ca­tion of the grant of pro­bate and that pro­bate of the 2008 Doc­u­ment be granted. 

The Court revoked the grant of pro­bate and grant­ed let­ters of admin­is­tra­tion with the will annexed in rela­tion to the 2008 Doc­u­ment. In doing so, the Court relied on the fol­low­ing reasons: 

• there was a doc­u­ment for the pur­pos­es of sec­tion 8 of the Act; 
• the Court accept­ed the evi­dence of var­i­ous peo­ple that Mrs Rod­ny and her son Lau­rence (the defen­dant) made state­ments to Jean­nette, Jean­net­te’s hus­band and a friend that she had made a will in the terms of the 2008 Document; 
• the Court found that when Mrs Rod­ny gave her instruc­tions to her solic­i­tor about the 2008 Doc­u­ment, she had a def­i­nite inten­tion to exe­cute a will in those terms;
• at the age of 86 years, Mrs Rod­ny attend­ed her solic­i­tor’s office on two occa­sions in August 2008, sug­gest­ing a com­mit­ment to mak­ing a new will; and
• Mrs Rod­ny formed the inten­tion that the 2008 Doc­u­ment would oper­ate as her will once an omis­sion in the first draft was corrected. 

Re Prien [2019] VSC 47

This case con­cerned an infor­mal cod­i­cil where the ter­mi­nal­ly ill deceased signed the notes tak­en by the solic­i­tor bear­ing a state­ment the solic­i­tor’s notes ​‘form con­fir­ma­tion of tes­ta­men­tary intentions’. 

The deceased’s daugh­ter, Sasha sought pro­bate of a will dat­ed 29 July 2009 (2009 Will) and an infor­mal cod­i­cil dat­ed 15 Feb­ru­ary 2016, being the solic­i­tor’s notes. The cod­i­cil sought to alter the 2009 Will by giv­ing Sasha a larg­er share of the estate than the deceased’s son, Simon who had been estranged for sev­en years. After the deceased’s meet­ing with her solic­i­tor to make a new will, Sasha emailed the solic­i­tor with instruc­tions to make cash gifts to var­i­ous individuals. 

On 23 Feb­ru­ary 2016, the deceased was admit­ted to hos­pi­tal and lat­er that day, her solic­i­tor emailed a draft will for her review. The deceased fell into uncon­scious­ness and died before ever being aware of the draft will. 

The Court did not grant pro­bate of the infor­mal cod­i­cil for the fol­low­ing reasons:

• the cod­i­cil was not con­sis­tent with the deceased’s inten­tion that based on addi­tion­al funds she would receive from a per­son­al injury claim, Simon’s share would not change;
• the Court was not sat­is­fied that the deceased knew and approved of the con­tents of the notes, in that they did not reflect her true inten­tion; and
• it was not estab­lished that by sign­ing the cod­i­cil, the deceased intend­ed for it to have imme­di­ate effect, with­out fur­ther expla­na­tion as a doc­u­ment alter­ing a will.

Con­clu­sion

In short, all wills should be signed by the per­son mak­ing the will and wit­nessed by two wit­ness­es. While it is pos­si­ble that an infor­mal will can even­tu­al­ly be proven in Court to be the deceased’s final will, that Court process (and asso­ci­at­ed costs and delays) can be eas­i­ly avoided.