Australia: Informal wills vs formal (or valid) wills

The legislative process is constantly challenged to keep pace with a rapidly changing world. This task is made even more challenging by an avalanche of new technology.

One of the most interesting legislative responses to changing technology in recent years has been the recognition of "informal wills".

An informal will is a document which purports to state the testamentary intentions of a deceased person, but which has not been executed in accordance with the formal requirements for a valid will.

Formal requirements for the execution of a will

In Queensland, the formal requirements for the execution of a valid will are set out in section 10 Succession Act 1981, which relevantly provides that, to be valid, a will:

  • must be in writing;
  • must be signed by the will-maker, or by someone else in the presence and at the direction of the will-maker, in the presence of at least two witnesses, who must be present at the same time; and
  • must be attested and signed by at least two of the witnesses in the presence of the will-maker.

The witnesses are required to be over the age of 18 years and must also be able to see the will-maker's signature, which means that a blind person cannot be a witness to a will.

The purpose of formalities for the execution of wills

These formal requirements for the execution of wills exist for a range of reasons, including:

  • simplifying the will-making process by standardising the manner in which a will must be executed;
  • impressing upon will-makers the importance of what they are doing in making a will;
  • minimising the risk of dispute as to whether a document is in fact a will;
  • protecting will-makers (who may be vulnerable due to age or illness) and their intended beneficiaries by ensuring that wills must be executed in a way that limits the potential for fraud, coercion and undue influence; and
  • making the task of the courts, which have to process many thousands of applications for probate every year, more straightforward.

Traditional approach to the formal requirements for the execution of wills

Traditionally, the law required that, in order to be valid, a will had to be executed in strict compliance with the formal requirements. If the formal requirements were not fully complied with, the document was not a valid will, even if there was no doubt that the document in question correctly stated the wishes of a deceased person.

Substantial compliance

In the early 1980s, the law in Queensland relating to the formal requirements for the execution of wills was relaxed slightly, so that a document which had been executed in "substantial compliance" with the formalities could be recognized as a valid will. This change in the law reflected the recognition that insistence on meticulous compliance with the formal requirements could, in some cases, lead to unjust outcomes. Similar changes to the law also occurred in other Australian jurisdictions.

However, by continuing to insist upon substantial compliance with the formal requirements, the effect of this change in the law was quite limited from a practical perspective. This was because the focus remained on the extent of the compliance with the formalities, rather than on what the deceased person had intended to achieve. If the extent of compliance with the formalities was not substantial, then a document still could not be recognized as a valid will.

Recognition of informal wills

In 2006, the law in Queensland relating to compliance with the formalities for the execution of wills underwent a significant change with the introduction of section 18 Succession Act 1981, which empowers the Supreme Court of Queensland to recognize a document as being a will if the Court is satisfied that the deceased person intended the document to form his or her will, regardless of the extent of compliance with the formalities.

This provision has fundamentally changed the approach to be taken to documents which purport to state the testamentary intentions of a deceased person, but which have not been executed in accordance with the formal requirements for a valid will. Whereas prior to the commencement of section 18 the law focused on the extent of compliance with the formalities in determining whether a document could be a valid will, section 18 now focuses instead on the issue of whether the deceased person intended the document to form his or her will.

Similar, though not identical, legislation has been enacted in other Australian jurisdictions.

Requirements of section 18 Succession Act 1981

Under section 18 Succession Act 1981, three conditions must be satisfied in order for a document to be recognized as a will.

  1. The first condition is the existence of a document. For the purposes of section 18, the definition of "document" includes
    • any paper or other material on which there is writing;
    • any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
    • any disc, tape or other article, or any material from which sounds, images, messages or writings are capable of being produced or reproduced, with or without the aid of another article or device.
  1. The second condition is that the document must purport to state the testamentary intentions of the deceased person. Testamentary intentions are intentions about what is to be done with the person's property on his or her death.
  2. The third condition is that the document must be intended by the deceased person to form his or her will. This means that the person must intend the document to be legally operative so as to dispose of his or her property on death. A document which is merely a draft, or which records the deceased person's preliminary ideas for a will, is not sufficient to satisfy this third condition.

In applying section 18, the court looks at the facts and circumstances of each case to determine whether the foregoing requirements have been satisfied. Of particular relevance will be:

  • the terms of the document itself;
  • the circumstances surrounding the creation of the document;
  • how, when and where the document was located;
  • the evidence of persons who had discussions with the deceased person about his or her intentions; and
  • what searches have been made in order to locate other wills made by the deceased person, most particularly any later will.

The practical effect of section 18 Succession Act 1981

Section 18 Succession Act 1981 has resulted in a range of documents which did not comply with the formalities being recognized as wills.

Prior to the commencement of section 18, it would have been impossible for an unsigned and unwitnessed document typed on an iPhone by a man shortly before he took his own life to be recognised as a will. However, in the recent case of Re: Yu [2013] QSC 322, the Supreme Court of Queensland found that just such a document was a valid will. In that case, the court found that the document was a will because:

  • the document commenced with the words "This is the last Will and Testament ...", and formally identified the deceased man and his address;
  • the document was created at a time when the deceased man was plainly contemplating his imminent death;
  • the document demonstrated an intention to appoint a particular person as the deceased man's executor, and authorised the executor to deal with the deceased man's affairs in the event of his death;
  • the document purported to dispose of the whole of the deceased man's property, which is something that a person would not ordinarily do except in the event of his or her death; and
  • the deceased man had typed his name at the end of the document where a signature would normally appear on a paper document, followed by the date and his address.

Other documents which have been held to be valid wills pursuant to section 18 (or the equivalent legislation in other jurisdictions) include:

  • suicide notes containing material disposing of the deceased person's property;
  • an unsigned handwritten note found on the reverse page of a diary kept by the deceased person;
  • a will prepared for a man which was mistakenly signed by his wife;
  • computer files;
  • audio recordings; and
  • a DVD recording.

A warning about relying on informal wills

While section 18 Succession Act 1981 has proved to be a progressive and sensible provision, it is important to bear in mind that it remains preferable to execute a will in accordance with the formal requirements to avoid uncertainty, rather than relying on an informal document.

As examples of the uncertainty that can surround an informal document, consider the following cases in which the Supreme Court of Queensland has refused to recognized informal documents as wills under section 18.

  • In Mahlo v Hehir [2011] QSC 243, the court found that an electronic document saved on a deceased woman's home computer was not a valid will. The court accepted evidence that the deceased woman knew that she had to print out and sign the document for it to be a valid will. Evidence was given that she knew the appropriate procedure, as she had made a formal will through a solicitor only months prior to the electronic document. There was also evidence given by the deceased woman's father that she had in fact printed the document out and signed it, but no printed version of the document could ever be located.
  • In In the will of Ethel Florence Panigas (deceased); In the will of John William Panigas (deceased) [2013] QSC 172, the court found that post office will kits that had been incorrectly filled out by a deceased couple were not valid wills. While the court was satisfied that the couple had shown that they had a general intention to make wills, it was impossible, due to ambiguity in the terms of the documents, to determine what their testamentary intentions were. As the court could not be certain whether the documents correctly embodied the deceased couple's testamentary intentions, it held that the documents could not be recognised as wills under section 18.

These cases demonstrate that the circumstances surrounding the creation of a document are crucial in determining whether the document can be recognized as a will under section 18. It is not sufficient to show that a person created a document with the general intention of making a will – a much greater degree of certainty and precision as to the person's testamentary intentions is required. Even if the person's intentions are clear, that will not be sufficient to have an informal document recognized as a will under section 18 if the evidence shows that the person intended to do something more to properly record his or her testamentary intentions.

Further, even where an informal document is held to be a will under section 18, the need to make an application to the Supreme Court of Queensland adds substantial cost and delay to the administration of the deceased person's estate. The cost of an application to the Supreme Court can run into the tens of thousands of dollars, due to the significant amount of evidence, sometimes including expert forensic evidence, which is required to satisfy the court that the document should be recognized as a valid will.

Accordingly, the best way for a person to ensure that his or her testamentary intentions can be carried out effectively and efficiently in the event of his or her death is still to make a valid will. Further, the best way to ensure that the will operates as intended is to have it prepared by a solicitor experienced in the drafting of wills. The temptation to reduce costs by using a will kit should be avoided – as one judge recently remarked:

"Home made wills are a curse. ... There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent."

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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