Even where there isn't a Will, there's a way: requirements, proof and process of Informal Wills

In brief: The New South Wales Supreme Court possesses the power to validate documents as an operative Will, even in circumstances where formal requirements prescribed by legislation are not met. 

Background

The conditions required for a valid Will are set out in the Succession Act 2006 (NSW) (Succession Act) and include that it is in writing, and signed by the Will-maker in the presence of two witnesses. 

However, section 8 of the Succession Act provides the Court with the power to dispense with the usual requirements and admit a document that has not been properly executed. 

Importantly, this section does not permit the Court to validate a Will that is invalid for reasons other than non-compliance with the formal requirements, such as testamentary incapacity or a lack of knowledge and approval. 

When can the Court dispense with the formal requirements? 

Section 8(2) of the Succession Act provides that a document, or part of a document, will form part of a deceased person's Will if the Court is satisfied that the person has intended it to be his or her Will. In New South Wales, a document will likely be considered an admissible 'informal Will' where:

1. there is a document;

2. it purports to state a person's testamentary intentions; and

3. the court is satisfied that the person intended the document to form his or her Will. 

Proof of "document"

'Document' in section 8 is quite broad. A number of remarkable examples of informal Wills have been approved by the Court.

In the Interpretation Act 1987 (NSW) 'document’ means any record of information, and includes:

(a) anything on which there is writing; 
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; 
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph.

Electronic documents have also been accepted as informal Wills (Yazbek v Yazbek [2012] NSWSC 594 at [80] (Slattery J); In the Estate of Robin Michael (deceased) [2016] SASC 164 at [25] (Stanley J)) 
Some of the more significant decisions where an informal Will has been proven to exist have involved:

• a video recording made by deceased;

• a DVD;

• a Will written on a mobile phone;

• an email;

• an unsent text message on a mobile phone;

• a video made on a mobile phone;

• an unsigned Will using information from a completed question created by an online Will-writing platform; and

• two different types of documents together.

Proof of testamentary intention

The Court has defined 'testamentary intentions' to mean an expression of a person's wishes as to what occurs to their property upon their death.  

In satisfying the second element, the Court looks at whether the document in question outlines how the deceased's property should be distributed on his or her death. Where a document is intended to take effect immediately rather than upon the death of the testator, it is unlikely to be considered a Will. 

Proof of intention with respect to the document 

This element requires the Court to be satisfied that the deceased intended the document to be their last Will. The intention must not be ambiguous. In determining this, section 8(3) of the Succession Act provides that the Court may consider:

• any evidence relating to the manner in which the document was executed; and

• any evidence of the testamentary intentions of the deceased person, including evidence of statements made by him/her.

Other relevant factors the Court may take into account include:

• how close in time the death and the preparation of the document was; 

• whether the deceased referred to the document as his or her Will; and 

• the importance the deceased attached to the document.

It is usually strong evidence that the deceased intended for the document to be his or her Will if it is signed, however, that is not conclusive evidence on its own.

Testators often change their testamentary wishes after seeing their draft Will or after providing instructions. Where statements have been made by a person suggesting that he or she considered the Will as "unfinished", the element of intent will not be satisfied. 

In NSW, a document cannot be considered a Will where it is clear that the person had intended the document to form his or her Will conditional on the occurrence of some future event, such as an amendment.

Instead, the person must have intended the document to have present operation, giving legal effect to his or her testamentary wishes and not be dependent on some future act.

Process

In NSW, for an informal Will to be operative, an application must be made for the document to be admitted into probate. The Summons for probate (Uniform Civil Procedure Rules (UCPR) Form 111) must also include a request for an order that the NSW Supreme Court makes a declaration under s 8 of the Succession Act that the informal Will constitutes the last Will of the deceased.

An affidavit is required to support the application for the grant of probate. The affidavit must disclose:

• any earlier effective Wills;

• where there is no earlier effective Will, the people who would be entitled under intestacy;

• if the people who are entitled under intestacy differ from the people who are entitled under the proposed informal Will, then the applicant must obtain either:

  • the consent of those persons who will be adversely affected (UCPR Form 134); or

  • to prove that they have at least been served with notice of the application; and the contact details of each person whose interest may be affected. (Supreme Court Rules 1970 (NSW), Part 78 Rule 14)

The application for probate should be filed as soon as possible, or at least within 6 months of the deceased's death. Where an application is filed after 6 months, the applicant must provide an explanation to the court for the delay. (Supreme Court Rules 1970 (NSW), Part 78 Rule 16)

Relevant cases

Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872

Rita Ramin took her own life and did not leave a valid Will that complied with the usual requirements. She had completed a questionnaire using an online Will-writing platform, Safewill. Safewill then generated a Will using the questionnaire's information, however, it was unsigned (online Will). In this online Will, she left most of her estate to her sister, however, intestacy rules would have distributed her estate differently. Rita's sister sought a declaration under Section 8 of the Succession Act that the online Will constituted the last Will of the deceased and applied for a grant of probate. 

The New South Wales Court of Appeal found the deceased intended the online Will to operate as her last Will. In arriving at this decision, the Court highlighted:

• the deceased paid for the Will - indicating that she considered it as finalised and completed and not preliminary or requiring revision;

• the online Will dealt with all of her property; 

• the online Will was complete and worded in intelligible English;

• the online Will was consistent with her family's understanding of her testamentary priorities;

• an email had been sent to her lawyer which said that she had "…drawn up and completed a Will" and provided a link to the online Will;

• the communication between the deceased and Safewill, where the deceased indicated her intention for the online Will to be legally binding;

• the deceased's prepared the online Will close to her death indicating she considered the Will to be complete; and

• the unsent text message between the deceased and her sister referring to "the link to my Will I made this morning".

The Court also found she had testamentary capacity, noting that there is no presumption that the will-maker lacked testamentary capacity.

The Estate of Bradley Scott Lyons [2021] NSWSC 197

Mr Lyons had a terminal illness. After seeking legal advice, he revised his Will to incorporate a testamentary trust. This would have provided his widow and three children with substantial tax benefits. However, he died prior to signing the final Will. His widow applied for probate of the unsigned and unwitnessed draft Will. 

The Court held the deceased had not intended the draft Will to be his last Will, thus, it could not be admitted into probate. In his judgement, Hallen J found the following factors supported his decision:

• the word 'draft' being imprinted on every page;

• the draft Will was prepared with the understanding that another document would be prepared for execution;

• no evidence that the deceased referred to the draft Will as his Will; 

• the deceased knew Wills needed to be signed and witnessed as he had prepared Wills with a solicitor in the past;

• no evidence that he intended the draft Will to be operative, rather, he knew the draft Will had to be signed in order for the Will to operate;

• no evidence that the deceased intended to adopt the draft Will as his final Will, rather, it seemed that an amended Will would be signed later after discussions with his solicitor; and

• there was no evidence of an attempt to sign the draft Will.

Key Takeaways

As evidenced by these examples alone, there are a variety of factors that the Court will consider before exercising it's discretion to admit an informal document as a Will. The likely outcome can be very difficult to predict. 

It is clear that the process of proving, or disproving, the existence of a Will has the potential to be costly, time consuming, and stressful for your loved ones and intended beneficiaries. These examples, and cases like them, highlight the importance of ensuring your Will reflects your testamentary intentions and that it complies with the formal requirements required by the Court.