“Why should I pay a solicitor to prepare my Will when I can just write one myself?”
For whatever reason – cost, convenience – some individuals choose to prepare their own Wills, sometimes without even a Will kit to assist them in meeting the necessary formalities as a bare minimum.
An “informal” Will is one that does not meet the requirements of Section 7(1) of the Wills Act 1997, being:
- That the Will is in writing and signed by the testator (the person making the Will), or if the testator cannot physically sign, signed by someone else at their direction;
- That the signature is made with the intention of executing a Will;
- That the signature is made in the presence of at least two witnesses; and
- That at last two witnesses attest and sign the Will in the presence of the testator.
If a purported Will does not meet these requirements, it will be up to the Court to determine whether Probate of the informal Will can be granted. The Court will particularly focus on whether the document records the deceased’s testamentary intentions and whether the deceased intended the document to be their Will. Not only does the Court process create additional strain on the family and friends of the testator, but there is also a high possibility that the document will be rejected. The following recent Supreme Court decisions show the various circumstances where an ‘informal Will’ is not accepted as a true Will of the testator.
Re Jones  VSC 273
In this case, the deceased was assisted by his brother and sister-in-law to make a Will at his home after the deceased had had a stroke. None of the parties were solicitors. On its face, the Will seemed to meet the requirements of Section 7(1); however, the Court found that the deceased had not physically signed the Will and that his relatives had instead forged his signature. If the deceased could not sign a document after his stroke, a solicitor would have included a proper clause in the Will that allowed someone else to sign on his behalf.
There was also a separate issue of whether the deceased had the capacity to make a Will at the time that the Will was executed. A solicitor could have satisfied themselves of his capacity and obtained further confirmation from the deceased’s treating doctor(s).
Re Estate of Brown: Bell v Barley  VSC 24
In this case, the deceased had hand-written a purported Will before going under anaesthetic for a shoulder surgery. There were no witnesses to the Will. The deceased had made a properly executed Will in the years prior to the surgery and, having survived his surgery, did not attempt to make a new “formal” Will afterwards (i.e. one which met the statutory definition above). The Will was vague as to his property, simply directing his Executors to sell his ‘posesions’ [sic], including ‘the property’. He did not set out any other directions to his Executors, saying they would ‘know what to do’. The percentages in which he wanted to leave his residue estate were also unclear and confusing.
The Court found that the document was not sufficiently precise to be a Will and represented his thought process, rather than a document that was intended to be binding. The Court also found that the document was only intended to be temporary and apply if the deceased did not survive the surgery. Having previously executed a formal Will, he knew what the requirements were for executing a Will and should have seen a solicitor following the surgery if he wanted to make his new instructions binding.
Re Sanders  VSC 694
Here, the deceased made an informal Will six years before her death, leaving a life interest in her property for her romantic partner and only nominal sums to her two sons, from whom she was estranged. These instructions were largely consistent with her previous formal Wills, except that previous Wills had made different beneficiaries the life tenants of her home. The deceased drew up the document herself and signed it without any witnesses. She then took the document to two different shops and had the shopkeepers (who were her friends) sign as attesting witnesses. Rather than store her Will in the deeds safe of her usual solicitor, the deceased hid the document in a secret compartment in her wardrobe and told her Executors of its location shortly before her death.
While the Court found that the informal document was consistent with the deceased’s testamentary intentions, it was not convinced that the deceased intended the document to be her Will. Particularly significant was the deceased’s long history of making a Will with the assistance of solicitors (spanning decades) and then storing her Wills in their safe custody. She would have known that there were formal requirements for executing a Will. Furthermore, her ‘witnesses’ did not see her sign the Will and were vague as to how they knew that the deceased approved of its contents. If the deceased had wanted to make a new Will, she should have seen her existing solicitors again (or found a new solicitor) to ensure it was valid and that her new romantic partner could continue to live in her house.
Re Martin  VSC 424
In contrast, the informal Will in this case was found to be valid by the Court. While undated and unwitnessed, the document was consistent with other evidence of the deceased’s testamentary intentions, including conversations with her friends and a Memorandum of Wishes filed with her previous Will. Where her Will was deficient, however, was in the distribution of her residuary Estate. The deceased wanted to split her residuary Estate between three of her friends. Two of her friends were identified by their full names and addresses, but the third friend was listed only as ‘Denise’. The deceased’s surviving friends did not know who ‘Denise’ was, and without any identifying information in the Will, the gift was deemed invalid. If the deceased had seen a solicitor to prepare her new Will, the solicitor would have ensured that enough information was included in the Will to sufficiently identify Denise. The deceased’s wishes could therefore have been followed after her death.
The above cases show the dangers of preparing an informal Will. If a Will is not executed correctly, the Court may disregard the Will maker’s intentions and apply a previous Will or administer their estate as if the deceased died without a Will (referred to as intestate) in accordance with the statutory formula.
The outcome, like in the case of Re Sanders, may well result in those you wish to benefit missing out. Even if your Will is accepted, as in Re Martin, the Court application needed to admit your Will to Probate may cost your Estate tens of thousands of dollars. Such a burden on your Executors and beneficiaries can be avoided by you taking the time (and spending a much more modest sum) by retaining a solicitor to ensure your Will is properly drafted, correctly executed and its provisions clear and enforceable.
Have you been delaying making a new Will? Contact us today to arrange a no-obligation meeting, in person or via videoconference.