Validity of a Will - What constitutes an informal will?

Date: Sep 17, 2012
Document Type: Article

When deciding the validity of a will a Court usually has to decide whether a document not duly executed sets out the testamentary intentions of the deceased.

The law reports are full of cases where testators or witnesses inadvertently forgot to sign or signed the wrong document or otherwise failed to comply with the law relating to proper execution of a Will.  In such cases judges have had to regretfully refuse probate even in cases where they appreciated what the testator’s true intentions were.  An invalid Will can cause great expense and/or heartache frequently coming to light when a carefully secluded homemade document is brought out after the testator’s death.

Is an informal will a valid will?

Section 8 of the Succession Act 2006 deals with the Court’s dispensing power regarding the validity of a will, formalities of execution, alterations or revocation of Wills where a document purporting to the be the Will of the deceased is not executed correctly.

Section 8 provides that the Court may dispense with the formal requirements of a Will if satisfied the deceased intended a document or part of the document to constitute, amend or revoke (fully or partially) his or her Will.

For the purposes of Section 8 the document may have come into existence either within or outside NSW.

In addition to the document, or part of the document, a Court may have regard to extrinsic evidence relating to:

  • the manner of execution; and
  • the testamentary intentions of the deceased, including statements made by the deceased.

The issues which the court is called upon whenever asked to recognize an informal will are:

1.    is there a document?

2.    does that document record the testamentary intentions of the deceased?

3.    does the evidence satisfy the Court that at the time the document was brought into existence the deceased by some act or words evidenced his or her intention that the document should without more constitute his or her Will.

If you are concerned about the validity of a will and want to speak with an experienced lawyer, call us on 02 8268 4000.

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