16 May 2022

The Dodgy Will

Charlie Young
Charlie Young Litigation Lawyer

It would surprise many the types of documents that have been approved by the Courts as being valid Wills.

Wills don’t necessarily need to have an official (and legal) look about them but they do need to be in writing, signed by the testator and witnessed by two people.

We see situations where that hasn’t occurred. It might be that someone has tried to amend their Will by writing changes on the Will itself, or has tried to write or type out a new Will. Sometimes a document is located where it’s not immediately clear if it was even intended to be a Will (eg. it doesn’t state that it is a Will, it hasn’t been signed and witnessed properly, it has pages missing, etc).

Often those types of documents won’t have any legal effect. However, the Court can sometimes approve them as a valid Will (an ‘Informal Will’), depending on the circumstances.

At the very least, an Informal Will must be a document (which includes an electronic document). So, it could take the form of handwritten notes on the back of a drink coaster, an envelope or a sticky tab; it could be something typed up and saved on a computer; it could be a Facebook post, email or text message; it could even be some writing on a wall.

It is not uncommon for relatives of a deceased to assume such documents have no effect, which isn’t necessarily true. All of these could potentially be a valid Informal Will.

The main hurdle is being able to convince the Court with supporting evidence that the deceased intended the document to operate as a Will (or part of an existing Will). This is where evidence from family members, friends or associates can be important. Sometimes, the intention can be largely inferred based on the circumstances of the death.

A recent example of an Informal Will being approved is the case of Re Holloway [2022] VSC 181.

In that case, the deceased left what was clearly a valid Will (held by solicitors) (“the Formal Will”). However, also located were documents that on their face were not valid Wills as they had not been witnessed:

  • There was a copy of the Formal Will with the deceased’s handwritten changes, signed a few days after the Formal Will was made (“the Notation Will”).
  • There was a two-page handwritten document made by the deceased many years later (signed on the date of death) which appeared to set out the deceased’s final wishes (“the Final Wishes”).

On a careful analysis of the evidence and previous case law, the Court was not satisfied that the Final Wishes could constitute an ‘Informal Will’. However, the Court did hold that the Final Wishes document should be deemed valid to the extent that it was a codicil (a supplement to) the deceased’s previous valid Will.

This then led to the question, what was the previous valid Will? (That is, was it the Formal Will or the Notation Will?)

The Court was satisfied that by making the handwritten notations in the Notation Will that the deceased intended to amend the Formal Will but not replace it. So, the Court held that the Notation Will should operate as a codicil (a supplement) to the Formal Will.

This meant that the deceased’s estate was to be administered based on the Formal Will, but subject to the amendments made under the Notation Will and subject to the amendments under the Final Wishes.

The lesson is:- if you locate a document that looks like it might have been intended to be a Will or part of a Will, you need to get legal advice because it may very well be deemed valid.

If you would like more information arising out of anything in this article, please contact Charlie Young today.

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