A properly drafted and executed Will ensures that a deceased individual’s assets are distributed according to their wishes after they pass away. But what happens if someone leaves a note, a voice memo, or even a text message outlining their intentions—these documents may not meet the formal legal requirements and may be considered an informal Will.
What Is an Informal Will?
An informal Will is a document or recording that expresses a person’s wishes about the distribution of their estate after death, but doesn’t meet the formal requirements set out in the Wills Act 1968 (ACT).
To be considered a formal Will in the ACT, a document must:
Be in writing;
Be signed by the testator (the person making the Will); and
Be witnessed by two people present at the same time.
If any of these elements are missing, the document may still be admitted as a valid Will—but only if the Supreme Court of the ACT is satisfied that the deceased intended it to be their Will.
Examples of Informal Wills
Informal Wills may include:
Unsigned or unwitnessed handwritten documents;
Typed documents on a computer or phone;
Video or audio recordings;
Text messages or emails; and
Letters expressing testamentary wishes.
Legal Basis in the ACT
Section 11A of the Wills Act 1968 (ACT) gives the ACT Supreme Court what’s known as a dispensing power. This allows the Court to accept a document that doesn’t meet the formal requirements if it is satisfied that:
The deceased person intended the document to be their Will, an alteration to their Will, or a revocation of a previous Will; and
There is enough evidence of that intention, even if the document is not signed or witnessed.
This is not straightforward. The Court will need to be persuaded by detailed evidence of the above; such evidence may include oral/written evidence from family members or others close to the deceased about the testator’s expressed intentions; handwriting experts to compare the deceased's handwriting to that contained in the informal Will (if its hand written); and medical information for the deceased to establish capacity.
Why Informal Wills Are Risky
While the law offers some flexibility, informal Wills carry significant risks, including:
There is no guarantee of validity: The Court may ultimately reject the document. If this occurs, the laws of intestacy apply.
There will be increased legal costs: Court proceedings to prove an informal Will are expensive and time-consuming; the estate usually bears such costs.
Family conflict may arise: Ambiguities in an informal Will often lead to disputes among relatives.
Delays in administration: Court proceedings are time-consuming; seeking assistance from the Court in relation to whether an informal Will is valid can delay probate and estate distribution significantly.
How to Avoid Informal Wills
To ensure your estate is distributed in accordance with your wishes, and in a timely and cost-effective manner, you must execute a well-drafted Will in accordance with the requirements set out in the Wills Act 1968 (ACT) (or the relevant legislation in your state or territory).
Seeking the assistance of an experienced estate planning lawyer can assist you in ensuring that you record your intentions correctly and avoid any difficulties in having the Court accept your Will as your valid testamentary intention.
You should also regularly review your estate planning documents to ensure they accurately reflect your intentions. If you have a thought to change your Will, seek the advice of your estate planning lawyer, rather than simply noting down the changes that you want to make; such action may just be the difference between a valid and an informal will.
Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.