Proving Informal Wills

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Proving Informal Wills

Proving Informal Wills

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Interesting Fact

A last Will tapped out by the deceased in the notes section of an iPhone was recognised by the Queensland Supreme Court as a valid Will. Here, the deceased took his own life. Shortly before he died, he created a series of documents on his iPhone, most of them final farewells. One was expressed to be his last Will. The Supreme Court found that the document in the iPhone embodied the testamentary intentions of the deceased and was made in contemplation of the deceased’s imminent death. In the circumstances, the Supreme Court was satisfied that the deceased intended the document created on his iPhone to form his Will. In another case, where the deceased also committed suicide, the New South Wales Supreme Court held that a Microsoft Word document labelled “Will.doc” completed by the deceased and found in his laptop after his death formed the last will of the deceased and was admitted to probate.

The above two cases highlight the importance of giving due consideration to documents left behind by a deceased which may not conform to the traditional format of a Will, namely a document which is printed or in handwriting and which is signed by the deceased before 2 witnesses. Under Part 1X of the Wills Act (WA) 1970, the Court has the power to dispense with the formal requirements for a Will and instead recognise a document made by the deceased as a valid Will.

Your Question

My brother passed away recently and all we found is a handwritten note made by him distributing his assets to various family members.   This handwritten note is unsigned.  Can this handwritten note be admitted to probate as my brother’s last will?

The Law

Under section 32 of the Wills Act (WA) 1970, an informal Will is recognised as a valid Will if the following criteria are met:-

  • there is a “document”;
  • which purports to embody the testamentary intentions of a deceased person even though it has not been executed in the manner required under the act; and
  • the Court is satisfied that the person intended the document to constitute the person’s will.

In the Wills Act (WA) 1970, a “document” is defined as “any record of information” including — 

  • anything on which there is writing; or
  • anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or 
  • anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or 
  • a map, plan, drawing or photograph.

The wide definition of a “document” means that all manner of information which records the deceased’s testamentary intentions including handwritten notes, typewritten documents, video recordings, photographs, drawings and documents created on a phone, tablet, laptop or desktop are relevant in considering whether the deceased left behind an operative will. 

Having regard to the wide definition of a document, does this mean that any document left behind by the deceased would constitute a valid will?  How about drafts which a deceased may have prepared on his or her computer?  What about the instructions of a deceased’s testamentary intentions taken by a lawyer to prepare a will but which was not completed before the deceased passed away?   What about handwritten notes which the deceased may have made detailing the distribution of his or her assets in the event of death?   All such documents may have been “dry runs”, preparatory notes or mere thoughts which the deceased may have made for consideration before finalising his or her testamentary intentions.

Under section 32 of the Wills Act (WA) 1970, the focus in proving an informal Will is whether the document embodies the testamentary intentions of the deceased, namely the distribution of the deceased’s assets upon death and whether the deceased intended the document to constitute his or her last Will.  In forming its view, the Court may have regard to the document itself and to any evidence relating to the manner of execution or testamentary intentions of the person, including statements made by the person.

Accordingly, a document which embodies the deceased’s testamentary intentions is by itself not sufficient.  There must be evidence which satisfies the Court that either at the time the document was brought into being or at some later time, the deceased, by some act or words, demonstrated that it was his or her intention that the document should operate as his or her will.

Under section 32 of the Wills Act (WA) 1970, the same principles apply to recognising an informal document as an alteration of the deceased’s Will, a revocation of a Will or a revival of a Will or part of a Will.  Hence, the scope of the Court’s power is all encompassing and a document can be found to alter or revoke an existing will or revive a previously revoked will.

Matters for Consideration

If you are the executor named in the last will of the deceased or an intended administrator of an intestate estate or simply a family member of a recently deceased person, it is imperative that you preserve the personal papers and effects of the deceased.  A document may be found among the deceased’s personal papers and effects which contains the deceased’s testamentary intentions or the alteration or revocation of an existing will or the revival of a previously revoked will.   In today’s technological world, this will include all electronic devices capable of creating and storing information such mobile phones, tablets, laptops, desktop computers and video recording devices.

Notwithstanding that the Court has power to admit an informal will to probate, the most prudent path is to make a formal will.  An informal Will leads to great uncertainty as the Court may not be satisfied that the deceased intended the document to constitutes the deceased’s last Will.   An informal will is also susceptible to challenge by persons who have left been left out of the will.  If the Court is not satisfied that the deceased intended for the informal document to operate as a will, the deceased would have died intestate and the estate distributed in accordance with the entitlements under the law.  Besides the uncertainties, to prove an informal will in Court is a costly and emotional affair for the intended beneficiaries.

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What Is The Legal Help Project?

The Legal Help Project is an outreach initiative of Robertson Hayles Lawyers providing affordable initial legal advice to the community in areas of the law impacting on the individual. Robertson Hayles Lawyers is a legal practice based in Perth with more than 50 years of service to the Western Australian community.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.



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