What Constitutes an Informal Will?

Considering that there is no exact definition of an informal Will, courts are left to decide which types of documents or recordings can amount to an informal Will. Here are some examples:

• A Will that has been witnessed by only a single person
• An unsigned note made by the Willmaker at the hospital
• A signed note in a personal diary

You can see from these examples that these are some type of written document. In recent decades following the boom of technology, however, the definition of “document” has been extended. Today, it may constitute non-written forms, such as the following items:

• Documents created and stored in mobile devices
• Files saved on computers
• Video recordings
• CDs or DVDs
• An unsent text message
• Audio clippings or recordings

According to Section 6 of the NSW Succession Act, a Will is only valid if it meets the following requirements:

1. It has been written and signed by the Willmaker, or a person directed by the Willmaker.
2. The Willmaker’s signature is present or has been acknowledged in the presence of two or more witnesses, all at the same time.
3. Two of the witnesses should have signed and attested the Will in the presence of the Willmaker.
4. The Willmaker’s signature must be made with the extension of executing the Will. The signature doesn’t have to be written at the foot of the document.

According to the Act, any Will that meets the requirements above are considered as valid and true.

The acceptance of informal Will into probate or administration can be tricky, but people are generally given the chance to prove the validity of the Will. Here are some important considerations:

• The document must be presented in court: The purported Will must come in a document form, which can be in a piece of paper that contains symbols or writings. It can also be audio records, videos, and even computer files.
• The testamentary intention of the deceased must be clear and able to be ascertained: The contents of the documents must be clear, which is to deal with the deceased’s affairs.
• The Will should ideally operate as a Will and nothing more: For the document to be considered as valid, an individual must prove that the document is intended to work as a Will and nothing more. Note: A mere intention to write a Will cannot be considered.

The Court will take the surrounding circumstances of the creation of the informal Will into account.

Further evidence may also be necessary, especially witnesses that may have had contact with the deceased regarding their testamentary intention. Any undue influence exerted on the deceased’s informal Will should also be investigated.

While it’s possible to have informal Will accepted as valid, there are no guarantees. To avoid any headaches for your family, it’s better to have Will prepared by experienced Will lawyers, as this minimises significant legal expenses that can be incurred to distribute assets properly after death.