Many people will be unaware that for a formal will to be valid,
it simply must be in writing and signed by the maker in the
presence of two witnesses.1
A will that fails to meet these requirements, usually known as
an informal will, may nevertheless be deemed to be valid. However,
getting to that conclusion could be a costly, drawn-out process for
whoever applies to administer the estate (normally the executor).
The applicant will need to convince a court that the document
satisfies the criteria of an informal will. Often this will require
them to commence legal proceedings.
What is an informal will?
For a document to be a valid informal will it must:
Be contained in a document (or part of a document);
Embody the maker's testamentary intentions; and
Be intended by the maker to constitute their
There have been some interesting arguments about the definition
of "document" over the years. A "document"
includes any publication expressed or described upon any substance
by means of letters, figures, or marks. A will written on a wall,
one that is photographed or even one which is video-taped (or
electronically recorded) may constitute a
The next two criteria are slightly more elusive:
For a document to "embody the maker's testamentary
intention" it must be found to be an expression of the
maker's wishes regarding the final disposition of all of their
estate. If there is evidence of equivocation by the maker of the
document, a court may not be satisfied that it reflects the
absolute or final intentions of its author. If, for example, a
person instructs their solicitor to draft a will, but then never
actually signs it, a court is extremely unlikely to conclude that
the unsigned document embodies the makers' testamentary
intentions. This is because it is almost impossible to exclude the
possibility that they would have changed their mind at some point
before signing the document, or that they did not fully understand
the effect of the document.
Whether or not the maker "intended the document to
constitute their will" depends upon the document itself,
as well as any evidence from which the Court can infer intention.
The presence of the words "last will and testament"
may help, but will not be decisive.
A signature at the end of the document will go some way to
persuading a court that it was intended to operate as a will.
Indeed, if the document is unsigned it will be extremely difficult
for a court to conclude that it was intended to operate as
Invariably family members and friends abound to give evidence
about what the maker of the will said to them at various intervals
in time. If these accounts are contradictory, a court will find the
process challenging indeed.
Get a lawyer to draft your will
A properly drafted will is certainly the best way to avoid the
host of problems that can arise from an informal document. Whilst
it may not be able to prevent the beneficiaries from having to deal
with Family Provision Act claims, or even claims that the
maker lacked testamentary capacity, it will usually avoid costly
and time-consuming arguments about whether there is a valid will or
(if several were written over the years) which specific one is
If you want to be certain that your estate will go to your named
beneficiaries, a solicitor will ensure that all relevant legal
requirements are met. Where doubt exists after the event, the
estate can very easily be consumed by legal costs.
1Wills Act 1970 (WA), section
2Spender v Spencer  WASC
3Treacey v Edwards (2000) 49 NSWLR
739; Re Trethewey (2002) 4 VR 406; Re Torr (2005)
91 SASR 27; Re Estate of Henry  WASC 85.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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