How to ensure your will is valid

Homemade documents, such as do-it-yourself will kits or handwritten notes, are often inadequate in clearly stipulating what you wish to happen to your assets after you die. A properly laid out and executed will can avoid unintended consequences, including legal delays, disputes and costs.

To ensure that your will is legally valid, it’s important that the following factors are included:

1. it is in writing;
2. it is signed by the person making the will (‘the Testator’);
3. the signature is made by the Testator in the presence of at least two witnesses;
4. the witnesses are present at the same time; and
5. the witnesses attest and sign the will in the presence of the Testator.

The more the document departs from the formalities for execution, the more difficult it is to prove that the deceased person intended the document to be a will.

Nevertheless, a document may still be regarded as being a will even if it doesn’t comply with the formal requirements. Such a document is commonly referred to as an “informal will”, although there is no definition of an informal will in the Succession Act.

What does an “informal will” look like?

The Succession Act gives the Supreme Court the power to dispense with the formal requirements relating to wills (and their alteration or revocation) if the following essential elements are included:

1. There must be a document.
2. The document must record the testamentary intentions of the deceased.
3. The evidence must satisfy the Court that at the time the document was brought into existence, the deceased intended the document, without anything more, to constitute his or her will.

Informal wills can be printed documents, audio files or digital files

A document is legally defined as any record of information, including:

• anything on which there is writing, or
• anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
• anything from which sounds, images or writings can be reproduced, or
• a map, plan, drawing or photograph.

It is clear that a ‘document’ is not limited to a piece of paper.

In Treacey v Edwards (2000) 49 NSWLR 739, the Court held that an audio tape was a ‘document’ as sound could be reproduced with the aid of a cassette player. The audio tape was admitted into probate.

In Yazbek v Yazbek (2012) NSWSC 594, the Court held that a Microsoft Word file named ‘Will.doc’, created on the deceased’s laptop, was a ‘document’ for the purposes of section 8 of the Act.

The Supreme Court of Queensland in In Re Yu (2013) QSC 322, accepted an iPhone will that had been created and stored by the deceased in the notes application of his phone as a valid will.

In all of the above cases, a considerable amount of evidence was provided to the Court before it was able to determine that the ‘document’ in question was an informal will.

Despite the Court’s ability to interpret such ‘documents’ as informal wills, the delays and costs that can arise from the uncertainty of these wills, along with the potential for disputes among family members is a big cost indeed.

Informal wills should only be used as a last resort.

There are occasions, such as when you go on an urgent overseas trip or perilous adventure where you may not have thought of a will until the last minute and simply write down some details in an email or document at homed. But if at all possible, it is far wiser to consult a solicitor and prepare a proper will, together with any other appropriate estate planning documentation.

This will give you and those who may be left behind, some peace of mind about your intentions for any assets you hold.

The existence of informal wills usually becomes apparent only after the deceased’s death, when no formal will can be found. If you are the next of kin or executor, it is advisable to conduct a thorough search of the deceased’s papers, as well as searching various electronic devices and the deceased’s social media accounts for any documents that might be regarded as an informal will.

If you need to have your will drawn up or updated, don’t delay – contact Streeterlaw on 02 8197 0105 or email advice@streeterlaw.com.au

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!