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Informal will applications

Amanda West

12 Nov 2018

Topics

  • Wills & Estates

When a document is not executed in accordance with the formal requirements for a valid will, a dispute can result. Should the document be recognised as a will, or not? In this article, Amanda West, paralegal with Snedden Hall & Gallop Lawyers, outlines the issues associated with informal will applications.

What is a valid will?

According to the law in the ACT, and throughout Australia, a will isn’t valid unless the following conditions are met:

  • it’s in writing
  • it’s signed at the foot or end by the will maker
  • the signature of the will maker is made or acknowledged in the presence of two witnesses who are both present at the same time, and
  • the  witnesses both attest the signing of the will in the presence of the will maker and the other witness.

What if these conditions aren’t met?

When a document purporting to be a will doesn’t comply with these requirements, the executors need to make an application to the Supreme Court. This application seeks the Court’s declaration that the purported will constitutes deceased person’s last will, even though it doesn’t meet the required formalities.

Our Wills & Estates team has recently acted for applicants in two successful informal will applications.

Case 1

In this matter, the applicant – let’s call her Lara – sought a declaration from the Court as to the validity of the purported will. In particular, when the testator signed the purported will, she only had one witness. The law requires two witnesses.

The deceased made the purported will approximately six months before her death, and titled it ‘Last Will and Testament of [name]’. In the document, the deceased appointed an executor and disposed her whole estate to one beneficiary. No evidence was submitted that the deceased lacked the requisite testamentary capacity to make the purported will.

However, the deceased had also made a previous valid will approximately five years earlier. The previous will appointed an executor; gifted various personal items to friends and allocated superannuation proceeds and life insurance to another person. The beneficiary of the superannuation and life insurance was the same person to receive the whole of the estate in the purported will. The residue of the estate was left to two friends equally. After it was executed, the deceased gave the original of that document to a friend to keep in her safe.

In these types of matters the Court must be satisfied that the applicant has given notice to ‘interested persons’. Interested persons are the beneficiaries named in both wills. The Court required the applicant to make all reasonable efforts to make contact with the interested persons. Furthermore, they had to get written acknowledgements from the interested persons confirming they didn’t oppose the application. The applicant incurred further legal costs tracking down those named in the previous will, some of whom were living interstate. Ultimately, the Court was satisfied that the applicant had made all reasonable efforts to contact the interested persons.

The judgment

The Court held that the purported will was the last will of the deceased person and made orders to that effect.

The Court relied on the extrinsic evidence that displayed the deceased’s testamentary intention when making the purported will. Specifically, the deceased had attached a handwritten note to the purported will, in which she summarised what her will did (i.e. disposed of the estate to the one person) and why she had chosen to dispose of the estate this way. The note also made reference to the previous will held in the safe and stated that it should be disregarded.

Case 2

The second matter involved two applicants – let’s call them Jacob and Ryan. They sought a declaration from the Court as to the validity of the purported will on the basis that, when the testator signed the purported will, they only had one witness. 

The deceased made the purported will shortly before his death and titled it “Last Will and Testament of [name]”. In the purported will, the deceased appointed the applicants his joint executors and disposed of his estate in various shares to his children and extended family. The deceased also included a statement that expressly excluded his estranged wife from receiving any benefit from his estate. He also included his reasons for excluding her.

The deceased had made previous wills that were valid. In those wills, he had left a share of his residuary estate to his estranged wife.

Unfortunately, the deceased omitted to include a second witness on the purported will. The applicants put the omission down to a computer formatting error.

The applicants submitted that it was the deceased’s testamentary intention to expressly exclude his soon-to-be ex-wife from receiving any benefit from his estate. The deceased has stated the reason for this in the purported will. If the Court held the last will invalid, then the deceased’s estate would be administered according to the terms of the previous will. This would mean that the estranged wife would receive a financial benefit.

The judgment

In handing down judgment, the Court considered the questions raised in Re Letcher (deceased) (1993) 114 FLR 397. They found that:

  • there is a document
  • the document purports to embody the deceased’s testamentary intentions (i.e. it appoints the executors, disposes of the estate to intended beneficiaries and is signed by the deceased), and
  • at the time of the document being brought into existence the deceased person intended the document to constitute his last will.

The Court revoked the previous wills and held that the purported will was the last will of the deceased person.

How can Snedden Hall & Gallop assist?

Our Wills & Estates team is highly experienced in preparing legally compliant wills. If you would like advice in relation to your will, or if you have concerns that your will may be invalid, please contact us today by email or on 6285 8000.

Alternatively, our Wills & Estates team includes experienced estate litigators. If you require assistance in challenging the compliance of a will, defending an estate, or making an application establishing the validity of a will, please contact the team.