The Many Guises Of Informal Wills

Last Will and Testament
Last Will and Testament
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The expression ‘informal will’ is not found in the Succession Act 2006 but it is an accepted ‘short-hand’ reference to the ‘thing’ which a court may treat as a will pursuant to s 8 of the Act. Nevertheless, it is a misleading label, as an ‘informal will’ may not only be a will, but it could be a codicil or the opposite of a will, a revocation.

There are four requirements for an informal will. It must be a ‘document’ as statutorily defined. Self-evidently, it must not be a properly executed will, codicil or revocation. The document must purport to state the deceased’s testamentary intentions. A good percentage of informal wills are suicide notes, or made in extremis, or isolation. These documents regularly lack ‘essential’ aspects of a will, like the appointment of an executor, or disposal of all assets. They routinely lack legal sophistication. The fourth requirement is that the deceased must have intended the document to constitute a will, codicil or revocation. A file note made by the will-drafter’s clerk, which was unknown to the testator, could not constitute an informal will. However, the fact that the deceased had never seen the document may not be fatal. The requirement that there be a ‘document’; challenges our conventional thinking about a will. A ‘document’ could be pretty-well anything. It is defined in s 21 Interpretation Act 1987 as ‘any record of information’.

It was said in Islamic Council of South Australia Inc v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 (at [20]) that: ‘While ‘writing’ often contemplates writing on paper it is nonetheless writing … if written in invisible ink. It is none nonetheless writing, if written in the sky by an aircraft engaging in sky-writing. To my mind, it is nonetheless writing, if it appears on a computer screen, as a result of the entry of data into a computer”.

Given the wide definition and construction, it is unsurprising that the contents of a cassette, a “Will.doc” (i.e. a Microsoft Word document) found in the hard drive of a computer, photographs, a video, a DVD, a mini tape recorder and a USB stick have been found to be a ‘document’. The document doesn’t have to be in English or made in Australia (Re Tang [2017] VSCA 171).

A legal personal representative has a clear obligation to disclose a document which may be an informal will, even if there is legal advice suggesting it isn’t.

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