A Will is a legal document which sets out your wishes as to how your assets will be distributed on your death. Read our Wills – Informally Yours article for more information.
A Will must meet a number of formal requirements under the Western Australian Wills Act 1970 which includes that it be in writing and be signed by you as the Willmaker in the presence of two independent witnesses.
However, what happens if your Will fails to meet one or more of these formal requirements?
A person who does not leave a Will at all is said to die Intestate and their assets are distributed in accordance with the provisions of the Western Australian Administration Act 1903. This Act sets out a formula of relatives who are to receive a share of your assets on your death. This may mean that persons to whom you want to leave something may not receive it and those to whom you may not have wanted to leave anything may benefit from your Estate.
Where a document fails to meet the formal requirements of a valid Will, it may nevertheless still be deemed to be valid. In such a case it is referred to as an Informal Will.
However, the procedure required to have an Informal Will approved to be Probated may be very costly and become drawn out. A person seeking to have an Informal Will Probated must convince the Supreme Court of Western Australia that the document satisfies the criteria of an Informal Will. That is, the Will must:
(a) be contained in a document or part of a document;
(b) set out the testamentary intentions and wishes of the deceased; and most importantly
(c) it must be demonstrated that the deceased intended that document to constitute their Will.
A document may be any record of information including anything on which there is writing or anything on which there are marks, figures, symbols etc. In the technological age in which we now live, what may constitute an Informal Will has become much broader and less well defined. For example, in 2017 the Supreme Court of Queensland held that an unsent text message that had been saved in the drafts folder of the deceased persons mobile phone constituted an Informal Will under similar Queensland legislation (Re Nichol; Nichol v Nichol & Anor (2017) QSC 220).
One of the hardest elements to prove is that the deceased intended the document to constitute their last Will. Whilst there may be some indications in the document itself that this was the intended last Will of the deceased through the words used, invariably it will be necessary for friends and relatives of the deceased to give evidence about the deceased and what he or she may have told them at various times about his or her testamentary intentions.
Where doubt exists as to whether or not a document will be found to be an Informal Will the assets that you leave can be swiftly consumed by legal costs. The best way to avoid the uncertainty, anxiety and unnecessary expense of having to bring an Application to the Supreme Court of Western Australia for an Order that a document is an Informal Will is to ensure that you have in place a properly drafted valid Will. This ensures that all of the relevant legal requirements are met and that your assets upon your death will go to your named beneficiaries.