Hollywood has a certain way of painting a Will as something you can just jot down on a napkin and hide away for your loved ones to find when you pass away. However, your last wishes might not stand up in court if you have an informal Will.
To help you make sure your Will is valid, we’re covering what an informal Will is, whether they work for probate and how you can avoid this estate planning mistake.
What is an informal Will?
An informal Will is a document that appears to outline the deceased's last wishes but does not meet all the requirements that make a Will legally binding or valid. An informal Will can technically be used to carry out your final wishes but requires a longer, more complex verification process in the Supreme Court.
Can you obtain probate for an informal will?
It's harder to obtain probate when submitting an informal Will because the court will first need to confirm the Will’s validity. To do this, the informal Will needs to meet the following requirements:
- There must be a document: The definition of a document in Australia is broad. Depending on the state, a document can be a video, an audio file or anything marked by words and symbols.
- The document must record the deceased’s final wishes: The informal Will must include how the deceased wants to distribute their property, and not just their last wishes.
- The deceased must have intended the document to be their last Will: Whoever is applying for probate needs to prove the deceased intended for the informal Will to be their final Will.
Who completes the application for probate or letters of administration must uncover and investigate two very important questions:
- First, what were the likely intentions of the deceased?
- Is the Informal Will intended by the deceased to be their last Will?
Examples of an informal Will
Informal Wills can include anything from a note on a piece of paper to a few scribbles on a napkin. However, they must clearly outline the deceased's wishes and clearly indicate that it’s intended to be their final Will.
For example, in 2013, the Queensland Supreme Court accepted an informal Will typed on an iPhone shortly before the deceased’s suicide. The note began with 'This is the last Will and Testament…', identified the deceased by name and address, demonstrated an intention to appoint an Executor and included instructions for all of their assets.
The deceased had also typed his name at the end of the document. The Court then considered that the willmaker committed suicide shortly after writing the document, which showed that he was contemplating his death when writing.
The Supreme Court accepted the informal Will because there was enough proof to support that this was the deceased's last Will. However, in general, it can be much harder for the deceased's loved ones to prove an Informal Will without enough information.
What makes a Will valid?
For a Will to be legally valid, the Supreme Court indicates that there are certain requirements the Will must fulfil:
- Signed and dated by the Will-maker
- Clearly intended to be the last Will
- Signed by at least two witnesses who can verify the willmaker was of sound mind when writing and signing the Will
How to avoid writing an informal Will
To avoid writing an informal Will, we recommend investing in the right estate planning resources. For example, Willed’s online Will service makes it easy to start writing your Will and, when life changes, to make updates. Your Will becomes legally binding after you print it, sign it and have it witnessed. Creating a valid Will is the cornerstone of estate planning, so don’t wait any longer.