Informal wills: a logical but costly advance in the Law of Succession

By Dan O'Connor • In Estate Planning, Estates, WillsComments Off on Informal wills: a logical but costly advance in the Law of Succession

One of the more intriguing developments in Succession Law over the past few years has been the rise of ‘informal’ wills as a legitimate testamentary instrument. Following amendments to the Succession Act 1981 (Qld) in 2006, the law in Queensland now permits a court to dispense with the formal requirements of making a will and permit an informal document to be admitted to probate. Analogous legislation now also exists in most other Australian jurisdictions.

The cornerstone factor is now that of intention. If it can be demonstrated that the deceased intended for a document to express his or her testamentary wishes, the courts have shown that they are prepared to recognise it as a legally enforceable will or codicil. This philosophy was best summed up recently by Lindsay J of the NSW Supreme Court, stating that as a result of these new laws “a premium is placed on substance over form”. This shift has consequently led to some interesting case law as of late:

  • Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 involved a ‘video will’ whereby a digital recording taken by one of the testator’s children leading up to her death was accepted as a codicil to her pre-existing formal will. In admitting the recording as valid the court had regard to the immanency of her death; the testamentary nature of the language used; and her demeanour as she articulated her wishes.
  • Another NSW decision, that of Estate of Roger Christopher Currie, late of Balmain [2015] NSWSC 1098, similarly upheld the validity of a ‘computer will’ that was found encrypted on the testator’s hard-drive several months after his death. The deceased had typed at the end of the document “signed by the writer Roger Christopher Currie” and this was deemed a sufficient attestation.

Despite these informal wills ultimately being upheld, this by no means ensures that any informal document will be recognised as valid. In each of the above judgments the courts cautioned against relying on improperly executed wills, and emphasised that these particular cases had a number of factors to demonstrate that the documents, indeed, carried intention. Other cases have been less successful in mounting this argument:

  • Mahlo v Hehir[2011] QSC 243 also involved a computer will, but in that case, the court was not convinced that the document carried sufficient testamentary intention. Key to this was the fact that the deceased was aware of the formal requirements of a will (having executed a formal will several months earlier) yet no attestation clause or signature was included.
  • Lindsay v McGrath [2015] QCA 206 involved an informal document that sought to exclude one child of the testator from any entitlement and give everything to his son. In a split 2:1 decision, the Court rejected the document because subsequent amendments were deemed evidence that it was subject to [at 73] “further thought, deliberation or possible revision”; so intention did not flow.

The courts have consistently distinguished between a document intended to act as a will with a document drafted in anticipation of executing a proper will. In these above examples, the documents in question were deemed to fall into this latter category.

Further discouraging the use of informal wills is the fact that proving their validity necessarily involves lengthy (and expensive) court proceedings, which ultimately diminishes the net worth of the estate. A comprehensive analysis of the circumstances surrounding each case is necessary before the courts can make an informed decision – and this represents costs in the order of tens of thousands.

A prudent testator should always engage with an experienced Succession Law practitioner when considering an estate plan. Not only does this provide the peace of mind of reducing uncertainty (thereby ensuring that your testamentary wishes are followed), in the end, it will save your family from the emotional and financial stresses of court.

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