Homemade wills - a recipe for disaster?

16 March 2017

A recent trend in the Victorian Courts is making it harder to prove “informal” wills. Will-makers need to be wary to ensure their wills are properly prepared and executed.

Everyone knows you need a Will, if you want to give your money and property to specific people after you die.

What isn’t so well known, however, is the specific requirements for a Will to be valid. If these requirements are not met, the process of “proving” the validity of the Will becomes much more difficult, and in some cases the Will may fail.

In 1997, legislation was put in place to validate certain documents that the deceased person intended to be their will, despite not complying with the formal requirements. These documents became known as “informal wills”, and over the last two decades, a range of signed and unsigned documents have been proven valid.

However, in the last few months, the Court has rejected a number of informal will applications. This usually results in the deceased person’s intentions not being implemented.

Examples of home-made documents which were all found to be invalid in the Court, include:

  1. A note written by a son on the back of an envelope, whilst he was in hospital.The note was addressed to his mother, and stated “the money in both accounts is for your personal use only”. He told her the note was “written in case something happened to him” (Re Tang [2017] VSC 59).
  2. A handwritten page that appointed executors, together with and handwritten page with a long list of names and dollar amounts, which were not attached to each other (Re Lynch [2016] VSC 758);
  3. A handwritten documents described as an ‘insert to the current will’, that purported to make some bequests additional to those in a prior, valid will – including a bequest of a substantial share portfolio (Re Kelsall [2016] VSC 724); and
  4. A typed document purporting to be a final will and testament, which appointed executors, and was signed by the testator and two witnesses (Re Sanders [2016] VSC 694).

The last decision is perhaps the most striking. In that case, the judge noted that the informal will did not bear the marks of being prepared by a solicitor and there was a lack of evidence of the circumstances of its creation, and no clear evidence as to how it came to exist. This was significant when compared with the deceased’s long history of formal will making. There was also a lack of evidence as to her testamentary capacity.

These cases emphasize the importance of advice in making a will, to ensure your wishes will be carried out. As well as ensuring validity, specialist lawyers can advise on a range of other issues to help you achieve your desired objectives for your family, such as:

  • establishing special “trust funds” (with a range of potential tax and other benefits);
  • advising on the risk of challenge, and ways to minimise that risk; and
  • dealing with your superannuation effectively.

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