Australia: The problem with informal wills

Last Updated: 16 May 2019
Article by Angela Harvey and John Trinh

In NSW, section 8 of the Succession Act 2006 (NSW) (Act) lets the Court dispense with the formal requirements for a will. However, it would be imprudent to rely on this provision (and state and territory equivalents if you are outside of NSW). It is always best to comply with the formal requirements of making a will to ensure your estate is distributed in accordance with your wishes.

Two cases highlight the dangers of failing to sign a will and trying to seek probate of informal testamentary documents.

Informal Wills

In NSW, the test for admitting informal wills is as follows:

  1. was there a document that did not comply with the formal requirements of making a will;
  2. did the document purport to set out the testamentary wishes of the deceased; and
  3. did the evidence satisfy the court that, at some relevant time the deceased demonstrated the intention that the document should, without more on his or her part, operate as his or her will.

Weisbord v Rodny; Rodny v Weisbord [2018] NSWSC 1866

In this case, probate had been granted for the will of Mrs Rodny (the deceased in this matter) dated 19 December 1997. However, she had taken steps to make a new will in August 2008 (2008 Document), for which there was no record of it ever being signed. Mrs Rodny's daughter, Jeanette brought a claim seeking revocation of the grant of probate and that probate of the 2008 Document be granted.

The Court revoked the grant of probate and granted letters of administration with the will annexed in relation to the 2008 Document. In doing so, the Court relied on the following reasons:

  • there was a document for the purposes of section 8 of the Act;
  • the Court accepted the evidence of various people that Mrs Rodny and her son Laurence (the defendant) made statements to Jeannette, Jeannette's husband and a friend that she had made a will in the terms of the 2008 Document;
  • the Court found that when Mrs Rodny gave her instructions to her solicitor about the 2008 Document, she had a definite intention to execute a will in those terms;
  • at the age of 86 years, Mrs Rodny attended her solicitor's office on two occasions in August 2008, suggesting a commitment to making a new will; and
  • Mrs Rodny formed the intention that the 2008 Document would operate as her will once an omission in the first draft was corrected.

Re Prien [2019] VSC 47

This case concerned an informal codicil where the terminally ill deceased signed the notes taken by the solicitor bearing a statement the solicitor's notes 'form confirmation of testamentary intentions'.

The deceased's daughter, Sasha sought probate of a will dated 29 July 2009 (2009 Will) and an informal codicil dated 15 February 2016, being the solicitor's notes. The codicil sought to alter the 2009 Will by giving Sasha a larger share of the estate than the deceased's son, Simon who had been estranged for seven years. After the deceased's meeting with her solicitor to make a new will, Sasha emailed the solicitor with instructions to make cash gifts to various individuals.

On 23 February 2016, the deceased was admitted to hospital and later that day, her solicitor emailed a draft will for her review. The deceased fell into unconsciousness and died before ever being aware of the draft will.

The Court did not grant probate of the informal codicil for the following reasons:

  • the codicil was not consistent with the deceased's intention that based on additional funds she would receive from a personal injury claim, Simon's share would not change;
  • the Court was not satisfied that the deceased knew and approved of the contents of the notes, in that they did not reflect her true intention; and
  • it was not established that by signing the codicil, the deceased intended for it to have immediate effect, without further explanation as a document altering a will.

Con­clu­sion

In short, all wills should be signed by the per­son mak­ing the will and wit­nessed by two wit­ness­es. While it is pos­si­ble that an infor­mal will can even­tu­al­ly be proven in Court to be the deceased's final will, that Court process (and asso­ci­at­ed costs and delays) can be eas­i­ly avoided.

For further information please contact:

Angela Harvey, Partner
Phone: +61 2 9233 5544
Email: axh@swaab.com.au

John Trinh, Solicitor

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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