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Informal wills: Without a will, there may still be a way

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By Rebecca Tetlow

A will is a legal document that is intended to clearly set out a person’s wishes after they die. Among other things, a will may determine how your assets will be divided, appoint executors to administer your estate, name a guardian for any minor children, and make arrangements for the payment of obligations.

What is a legal will?

A legal will is one that has been properly executed in line with the legislative requirements for your state or territory.

There are a number of requirements that must be met to properly execute a will. These include that the will is in writing, that it is properly signed by the testator and witnessed by two adults who aren’t beneficiaries of the will.

What happens if I don’t have a legal will?

Generally, someone who passes away without a legal will is said to have died intestate. In this case, the Court will appoint an administrator to determine how the assets should be distributed. This can be a costly exercise and may not reflect the individual’s actual wishes.

However, it is possible to take into account a person’s wishes, even if they haven’t been included in a legal will. In some cases, the Court can consider statements made by the testator as part of an ‘informal will’.

What is an informal will?

To approve an informal will, the court must be satisfied that:

(a) there is a document;
(b) the document sets out their testamentary intentions, ie the wishes of the person about the division of their assets after death; and
(c) the person intended that document to be their will.

The definition of ‘document’ is broad and is more than just a piece of paper. Examples of documents that have been accepted as informal wills include: a video of the person saying who they wanted to leave their estate to; an unsent text message on a mobile phone; notes on an iPhone; and a word document called ‘will.doc’ on a home computer.

The process for applying for the court to approve an informal will is more involved and complex than an application for probate of a validly signed will. Given that it can have significant consequences for the beneficiaries, information needs to be given to anyone who may be affected by the outcome and having evidence that proves the deceased’s intentions is crucial.

In many cases, the estate will incur additional and unnecessary cost as a result of needing to apply for an informal will to obtain a Grant of Probate or Letters of Administration.

(You can read more about the difference between these in our article Probate v Letters of Administration).

Unfortunately, the number of informal will applications are on the rise as more people attempt DIY wills but overlook important legal requirements such as having it properly witnessed.

What happens if I find an informal will?

If you find a document that seems to set out a deceased person’s testamentary wishes, don’t disregard it simply because it is not properly signed or witnessed. It’s important to get expert legal advice about whether an informal will application should be made.

In most cases, if an executor is aware of a document that could be an informal will, they’ll need to notify the court even if an application for an informal will isn’t made.

DDCS Lawyers have experience in informal will applications and we can assist you with the process to administer an estate. Contact our team on (02) 6212 7600.

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