There are formal requirements for making a valid will. Section 6 of the Succession Act 2006 (NSW) (the Act) provides that a will is not valid unless:
it is in writing and signed by the testator (will-maker) or another person in their presence and at their direction;
the signature of the testator is made in the presence of two or more witnesses; and
at least two of those witnesses attest and sign the will in the presence of the testator.
However, there are certain circumstances in which a will that was not executed in accordance with these requirements will still be regarded as valid. A will that does not comply with the formal requirements is known as an ‘informal will’.
Requirements
Section 8 of the Act sets out the criteria that the Courts have regard to in deciding whether a will which does not meet the above requirements should be regarded as an informal will. Other than not being executed as per section 6 of the Succession Act 2006 (NSW), an informal will must be:
A document;
Which purports to state the testamentary intentions of the deceased; and
Was intended by the deceased to form their will.
We will examine each of these elements.
A Document
The term document is broadly defined in Section 21 of the Interpretation Act 1987 (NSW) to include any record of information. There has now been a series of cases wherein an electronic document has been accepted as informal wills. For example, in Yazbek v Yazbek [2012] NSWSC 594, a document found on the deceased’s computer after their death was admitted to Probate as an informal will.
Which Purports to State the Testamentary Intentions of the Deceased
Testamentary intentions are intentions with regard to the disposition of one’s property upon their death. Such intentions can be contrasted with the intention to make a gift which is not conditional on the death of the gift maker.
Intended by the Deceased to Form their Will
The final element is that the deceased intended the actual informal document itself to be their will.
The recent Court of Appeal decision in Rodny v Weisbord [2020] NSWCA 22 explains this further. That case involved a will drafted for the deceased by her solicitor, but never signed by her. After her death, her son attempted to have the draft will Probated. The Court held that the deceased did not intend for the draft will itself to form her will, as it constituted no more than instructions or a note of her instructions.
Hence, the question is not whether an unsigned document expresses the wishes of the deceased, but whether it was intended without more to be a will.
As may be expected, this is the requirement which is the most difficult to meet because the person whose intentions are being interrogated is no longer living.
One scenario in which this criterion may be met quite easily is when a testator creates what they believed was a formal will but through mistake or accident, it failed to meet the criteria of Section 6 of the Act. For example, if a will which otherwise met the requirements had only been signed by one witness. Plainly in such a situation, the testator intended the document to form their will, and thus this criterion is easily overcome.
However, the task is more difficult in relation to a document which the testator knows does not meet the formal requirements but nevertheless may have intended to operate as a will. Further complicating matters is that documents can now exist in purely electronic form. Where a testator has approved of a will in an electronic form and all that is left is for them to print and sign it, do they intend for it to form their will? Or is the contemplation of a further date on which they will print and sign enough to say that they didn’t intend the electronic document to form their will?
These questions are not definitively answered in NSW law, and either conclusion is possible depending on the individual facts of a particular case.
How Do Courts Work Out the Deceased’s Intention?
In determining whether the deceased intended the actual document to form their will, the Court may have regard to:
any evidence relating to the manner in which the document was executed;
any evidence of the intentions of the deceased (including statements); and
any other matter it considers relevant.
Section 8 of the Act provides a helpful failsafe for those who die suddenly or unexpectedly and had contemplated the disposition of their assets but had not progressed to formalising their wishes. However, there remains a lot of uncertainty in the area of informal wills, especially as we proceed further into the digital age, and so it is always best practice to keep an up to date and validly executed will somewhere safe.
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