Informal Wills – What are they?

It goes almost without saying that every adult should have in place an up to date formal Will as well as an Enduring Power of Attorney and an Enduring Appointment of Guardianship. The Will operates after death to ensure that the wishes of the person are followed regarding assets. The Power of Attorney and the Guardianship documents operate during the life of the person to ensure that steps can be taken to assist them financially and physically during any periods of incapacity.

What then is an informal Will?

The scope of things that can constitute as an informal Will is evolving as rapidly as new methods of communication are changing. It can be almost any means of the recording of a person’s wishes regarding the disposal of their assets after death provided that the Court can be satisfied that the instrument was intended to be their last Will and testament.

What sort of things have been considered as informal Wills?

The Courts have considered a wide range of things as constituting informal Wills including text messages, word documents saved on a computer but never printed, audio recordings on a mobile phone, video recordings and even suicide notes. A solicitors notes of the instructions provided by a client about their Will can also be considered as an informal Will if the person has adopted those notes as a temporary last Will and testament – normally by signing the document as such at the end of the conference. We often do this when it is expected that the clients might be delayed in finalizing their formal documents for some time – it provides valuable protection in the interim.

What is the process to prove an informal Will?

As you would expect, the process in proving an informal Will is much more complex and significantly more time consuming then proving a formal Will. An application to the Court has to be made and evidence will need to be provided to satisfy the Court that the deceased intended that the informal Will was indeed intended to be their last Will and testament.

Although the Courts willingness to except non formal instruments and recordings as an informal Will is a welcome and sensible development provided that the appropriate proof can be furnished of the deceased’s wishes, it doesn’t change our advice that a properly prepared and legally binding formal Will should be prepared and maintained by all adults. Some people don’t prepare Wills on the basis that they don’t presently have assets that need protection. The benefit of having a valid formal Will, even in circumstances where there are presently no significant assets, is that it will cover any assets acquired in future. In short, if you don’t have a formal Will in place our advice is to have one prepared as soon as possible.

For any assistance in relation to estate planning or estates generally don’t hesitate to contact wmd@wmdlaw.com.au or call our office on 9565 8688.