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Informal wills: The potential for estate litigation

17 Oct 2017

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  • Wills & Estates
man with mobile phone

What happens when a document is not executed in accordance with the formal requirements for a valid will? An informal will can result in a dispute. Should the document be recognised as a will, or not?

The law in the ACT, and similarly throughout Australia, provides that a Will is not valid unless:

  • It is in writing;
  • It is 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 two witnesses each attest the signing of the Will in the presence of the will-maker and the other witness.

But what happens when a document purporting to be a Will does not comply with these requirements? Snedden Hall & Gallop Lawyers discuss the recent decision in the QLD Supreme Court case of Re Nicol; Nicol v Nicol & Anor (2017). This case demonstrates that an invalid Will is highly likely to be challenged.

The ‘text message’ will case

Shortly before the deceased took his own life, he created a text message on his phone. That unsent text message was addressed to the deceased’s brother, and described the deceased’s assets and who should receive them on his death. The text message was dated and contained the words “My will”.

The message did not comply with the formal legal requirements for a valid Will. However, the deceased’s brother argued that the text message contained his brother’s final testamentary intentions and that he had intended the unsent text message to operate as his will.

The deceased’s wife, however, argued that because the text message was unsent, he did not intend for it to operate as his will. Coincidentally, the deceased’s wife was not mentioned as a primary beneficiary in the text message and she stood to inherit the bulk of the deceased’s estate if the Court rejected the deceased’s brother’s application.

For the Court to declare an otherwise invalid document to be a valid will, it must be satisfied that:

  • There is a document in existence;
  • The document purports to state the testamentary intentions of the deceased; and
  • At the time of drafting the document, the deceased intended the document to constitute their will.

Based on the evidence before the Court, the Court was satisfied that the unsent text message was an electronic document, that the terms of the text message stated the deceased’s testamentary intentions, and that at the time he prepared the text message, the deceased formed the intention that the text message operate as his will, notwithstanding that the text message was unsent.

The costly impact of an informal will

The case highlights the importance of having a legally compliant will. A valid will can avoid the potential need for your estate to run a lengthy, costly, and possibly contested application to the Court. It remains to be seen whether the Court decision will be appealed in this case. The judge noted that the outcome would not stop the man’s wife making an application under family provision laws for a share of his estate.

How can you avoid lengthy and costly estate litigation?

There are constantly cases before Courts throughout Australia where informal wills are challenged. The informal will may indicate a testator’s (will-maker’s) last wishes, but if the informal will is not accepted by the Court, those people who will benefit from the estate may be different to those who the testator wanted to be beneficiaries. The beneficiaries will also only receive the proceeds of the estate after legal costs, which can significantly deplete the estate, and lengthy delays. If you want to avoid this situation, a formal will is your best option.

How can Snedden Hall & Gallop assist you?

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 our Wills & Estates team today.

We have a team of experienced estate litigators. If you require assistance in challenging the compliance of a will or in defending an estate, please call the Wills & Estates team on (02) 6285 8000 or by email.