To be a formal and valid Will a document normally needs to meet the requirements of Section 6 of the Succession Act. Section 6 states that for a Will to be valid it is required to:

I.         be in writing and signed by the testator or by some other person in the presence of and at the direction of the testator,

II.         the signature must be made with the intention of executing a will, in the presence of at least 2 witnesses at the same time, and

III.         at least 2 of those witnesses must attest and sign the will in the presence of the testator.

An Informal Document can be considered a Will

Despite the above, Section 8 of the Succession Act allows for special circumstances when an informal document can be admitted into probate and gives the Court the power to dispense with the above formal requirements of a Will.

To be admitted into probate the document, if it does not meet the formal requirements of section 6, needs to purport to state the testamentary intentions of a deceased person.

It is possible to apply to the Court seeking Probate of the informal document and the possibilities regarding the form of an informal will are almost endless. Such a document may take the shape of a handwritten note, a statutory declaration or a letter.

The definition of document has a wide application in such circumstances and includes many means of recording information. According to the Interpretation Act it can include ‘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 with or without the aid of anything else, or a map, plan, drawing or photograph.’

Court Orders and Considerations

The Court can make a variety of orders depending on whether the court is satisfied that the person intended it to form their will, an alteration or a full or partial revocation of the deceased’s Will.

There are certain criteria that the Court has to apply in making its determination on whether the informal document should be treated as a Will. The Court is able to take into consideration any evidence relating to the manner in which the document was executed, and any evidence of the testamentary intention of the deceased, including evidence of statements made by the deceased to other people and surrounding circumstances when creating the informal document.

The intention of the person making the Will is not always an easy to prove. Reference to the death of the testator and their intention within the document can be a critical factor but there are many others. The law permits a range of evidence to be used to prove the informal document, including statements made by the deceased to witnesses.

One of the most important factors is the ability to demonstrate that the deceased had the intention to convey their testamentary wishes through the document. Probate of a formal Will can even be revoked if an informal document is introduced and proved.

Taylor and Scott Lawyers are experienced in assisting in matters involving informal documents and applying to have them admitted into probate or administration.   Please feel free to call our office on 1800 600 644 you have any questions regarding a matter involving an informal document.

If you would like to discuss your Will, Probate, Estate Planning or Contested Estate with one of our solicitors, please do not hesitate to contact our office on 1800 600 664, or send a message by completing the contact form.

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