An informal Will is any document that purports to be the last Will and Testament of a deceased person, despite the fact that it does not comply with the formal requirements for a valid Will as set out in section 7 of the Wills Act 1997 (Vic). An informal Will can be a document that is:
- written or contains symbols;
- audio or video recording; or
- computer or USB files.
Since 1997, section 9 of the Wills Act 1997 (Vic) has allowed the Supreme Court to admit informal Wills into probate in certain circumstances. The Court has to be satisfied of the following:
- That there is a document;
- That the testator intended that the document deal with his or her assets upon death; and
- That the testator intended for the document to be his or her last Will.
Informal Wills have proven to be costly and time-consuming applications, with no guarantees that the Court will determine the document to be the testator’s last Will and Testament. The Court must take into consideration a number of factors, including any evidence that can be given by family or friends as to the testator’s intentions in relation to their estate before death. This can be particularly tricky if family members have different ideas or recollections of the deceased’s wishes. The Court also looks at the deceased’s capacity at the time of making the document and, particularly if there are previous formal Wills, takes into consideration whether there has been any undue influence at the time of making the document.
In order to save your family time, money and stress associated with informal Wills, it is always best for you to ensure that any wishes you have written on paper, computer files or recordings are subsequently documented in a formal Will. This is the only way to ensure, with any degree of certainly, that your wishes will be followed.
If we can be of assistance, feel free to make an appointment with one of our experienced Wills & Estates lawyers.