For a Will to be valid in New South Wales it must satisfy a number of formal requirements set out in legislation. However, a document may still be considered a person’s final Will even if it fails to comply with formal requirements (“informal will”).
Section 8 of the Succession Act 2008 sets out the circumstances where the Court may dispense with the formal requirements for the execution, alteration or revocation of a will. The court must be satisfied that the deceased intended the document to be their final will.
The minimum requirement that must be satisfied is that there is a “document”. According to legislation a “document” is not restricted to any “paper or material which is in writing” (Succession Act 2008 s 3(1)). For example, a tape recording has been admitted as an informal Will by the Court.
If such a document is found, it should be provided to the Court with the application for a grant of probate or letters of administration. The Court will then determine whether the document is in fact the Will of the deceased.
What are the issues concerning informal Wills?
There are a number of issues concerning informal Wills that you should be aware of, which include:
- The Court has the ability to determine that an informal document is not in fact the last Will of the deceased. This may be due to the Court not being satisfied that the person intended the document to be their last Will.
- The difficulties that arise in relation to the subsequent administration of the estate of the deceased. These difficulties may arise from incomplete, inconsistent and missing provisions in the informal Will.
Many informal Wills are made through the use of “Will Kit” forms. It is common to find that many of these Will Kits do not satisfy the formal requirements set out in legislation because they have not been signed or witnessed properly.
The abovementioned issues can cause cost and delay in the administration of a deceased’s estate. In order to avoid these issues, it is recommended that you not rely on such documents and ask a solicitor to prepare a Will for you.
If you need any further help with Wills, contact The Quinn Group on 02 9223 9166 to arrange an appointment or submit an online enquiry.
