When a loved one dies, everyone goes through a period of incredible grief and sadness. The last thing you want to be concerned with is dealing with your loved one’s estate, especially if, lo and behold, you find out that they never signed their Will.

 

If a person dies without having any documents which purport to be a Will, then the Administration Act allows for a certain class of person to apply for a Grant of Letters of Administration, appointing them executor, and allowing them to manage the deceased’s estate in accordance with the Administration Act.

 

However, what if a loved one passes and leaves a document purporting to be a Will? What then?

 

For a Will to be valid, it has to meet certain strict legal requirements. This is why we so often recommend to everyone to have their Will drafted by a lawyer.

 

One of these requirements is that the Will must be signed by the testator, and this signature has to be witnessed by two witnesses who are over the age of 18 years old. Please note that there are a number of formalities which must be met in order to draft a formal Will, with a valid signature being just one of them.

 

If a testator did not sign their Will, then this document could be an Informal Will.

Informal Wills

Informal Wills can be accepted by the Probate Division of the Supreme Court of WA if certain elements are established.

 

In order to establish that the Will was intended to be the testator’s last Will and Testament, the executor appointed under this document must provide evidence that it was the testator’s intentions to distribute their estate as outlined in the document.

 

Further, the court must be satisfied that the testator saw the document purporting to be Will and that the testator additionally accepted this document as their last Will and Testament.

 

Recent Case Law

An informal Will has been accepted by the Probate Division in the recent decision of Re the Estate of Allan John Young [2015] WASC 409.

 

The deceased in this matter made a properly executed will on 26 March 1970, distributing his estate to his parents upon his death, and in the event that his parents pre-deceased him, his estate was to be distributed amongst his three siblings.

 

In 2011 the deceased told his accountant that he wished to prepare a new Will and that he wanted to pass all of his assets (save for a particular bequest) directly to his siblings and their children.

 

The deceased prepared a schedule (the 2011 Schedule) setting out how he wished for his estate to be distributed and saw a solicitor to draft the new Will. The deceased sought advice from his accountant regarding the advice from his solicitor and the accountant advised the deceased that the advice was inadequate.

 

No Will was prepared.

 

In June 2013, the deceased again discussed the issue of preparing a Will with his accountant and forwarded yet another updated schedule of distribution to his accountant (the 2013 Schedule). This schedule was identical to the previous schedule, save for the amount of the bequest.

 

The deceased’s accountant completed a document entitled “Details for Will” and faxed this document to a new solicitor acting for the deceased.

 

After some further correspondence a draft Will was prepared in 2014. A copy of the draft Will was forwarded to the deceased shortly afterwards.

 

The deceased telephoned his accountant and said words to the effect of “I have read the Will and I am happy with the Will as long as you are.”

 

The deceased then passed away unexpectedly.

 

The deceased also told his neighbour about his Will. His neighbour gave evidence that the deceased would have signed the Will but for his unexpected death.

 

The court reiterated in this matter that the document purporting to embody the testamentary intentions of a deceased person can constitute a Will even though it has not been executed in the manner required, if the court is satisfied that the deceased intended the document to constitute his or her last Will.

 

Decision

The court was satisfied that although it was not executed, the Will prepared by the solicitor and sent to the deceased embodied the deceased’s testamentary intentions.

 

The court was also satisfied that the deceased intended to execute the Will prepared by the solicitors and would have done so but for his supervening ill health and untimely death.

 

The Will was accepted as an Informal Will because:

  1. The deceased has settled on his testamentary intentions in the 2011 schedule and he had not substantially changed these intentions in the 2013 schedule;
  2. The deceased instructed his solicitor to draft the Will in accordance with these testamentary intentions;
  3. The deceased advised his accountant that he had seen the Will and that he was happy with the draft; and
  4. The deceased was unequivocal about his intentions to sign the Will whilst discussing it with his neighbour.

Further Case Law

It is important to keep in mind that the evidence necessary to prove an Informal Will may not be readily available and evidentiary obstacles are common in relation to informal Will matters.

 

In the recent Queensland Court of Appeal Case, Lindsay v McGrath [2015] QCA 206, the court highlighted evidentiary difficulties that can arise in Informal Will cases.

 

The court held that, great care is to be taken in the evaluation of the relevant evidence. To satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death.  The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.

 

If you find yourself in a situation involving a Will that has not been signed, please don’t hesitate to contact us with any queries you may have.

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