A valid Will is an essential component of estate planning. What constitutes a valid Will in NSW is specified in legislation. However, a document which does not satisfy these formal requirements may in some circumstances also be considered a valid Will.

Can an Informal Will be valid?

Section 6 of the Succession Act 2006 (NSW) (the Act) provides that a will is valid if:

1. it is in writing and signed by the willmaker (called the testator) or by someone else in the presence of and at the direction of the testator; and
2. the signature is made or acknowledged by the testator in the presence of at least two witnesses present at the same time; and
3. at least two of those witnesses attest and sign the will in the testator’s presence (but not necessarily in the presence of each other).

The testator’s signature need not necessarily be at the foot of the Will but it must be made with the intention of executing the Will. An attestation or signing clause is not essential. A Will that satisfies these requirements (the valid Will test) is known as a Formal Will.

What is an Informal Will?

A Will that doesn’t strictly satisfy the above requirements is known as an Informal Will. The Act doesn’t define an Informal Will but usually it is a document which contains the wishes of the testator but doesn’t satisfy the valid Will test. Some common examples are:

1. a partially burnt signed and dated Will;
2. an unsigned note made by a patient in hospital;
3. money inside an envelope on which a note has been scribbled giving the contents to a nominated person;
4. a Will witnessed by only one person; and
5. a signed noted contained in a personal diary.

Traditionally, an Informal Will had to be in some type of written form as in a “document”. However, in recent decades, advances in technology have case by case extended the definition of what can constitute a “document” to non-written forms including:

• a document created and stored in an iPhone;
• an unsent text message on a mobile;
• a file saved on a computer hard drive;
• a video recording on a DVD; and
• an audio recording on a Dictaphone.

When does a Court accept an Informal Will as valid?

Section 8 of the Act allows the Court to dispense with the requirements of the valid will test if:

1. there is a document or part of a document that appears to contain the deceased’s wishes of how they wanted to distribute their assets but has not been signed in accordance with the Act; and
2. the Court is satisfied that the deceased intended the document to form their will.

Many applications to the Court under Section 8 of the Act are disputes over “competing Wills”. That is, at least two documents appear to contain the deceased’s wishes, one of which may be an earlier Formal Will and another a subsequently made Informal Will. Such disputes can lead to lengthy and costly court proceedings as to which of the documents the Court determines is the valid Will.

In making a decision under section 8 of the Act as to the validity of an Informal Will the Court may:

1. examine the document itself;
2. consider evidence relating to the manner in which the document was signed; and
3. consider evidence of the deceased’s testamentary intentions including evidence of statements they made.

There is however no limit on the matters to which the Court may have regard when making a decision to dispense with the strict requirements of the valid Will test.

The effect of the Court accepting an Informal Will as a valid Will is that it overrides any prior Wills the deceased made. The Court will grant Probate to the person(s) nominated in the Will as the deceased’s executor(s). That empowers the executor(s) to distribute the estate assets according to the Will.

If the document accepted as a valid Will does not appoint an executor, the Court will grant a Letter of Administration to the person(s) who have applied to the Court to be appointed as the Administrator(s) of the deceased’s Will. That empowers them to distribute the estate assets.

What now?

The law in NSW provides that in some circumstances an Informal Will may be accepted as a deceased person’s valid Will. However, it is by far a better option to have your Will prepared by an experienced lawyer. This minimises the legal expenses to be incurred by your estate and ensures that your actual wishes for distribution of your assets after your passing are carried out. Contact us to draft an effective Will for you at a reasonable cost.