What if there is a problem with a Will and when can it be admitted to probate as an informal Will?
Sometimes, despite the best of intentions, what you may believe to be your Will has not been executed in accordance with the legal requirements that enable it to be legally valid.
In certain circumstances, the document may be saved by the provisions which allow informal Wills to be admitted to probate (section 9 of the Wills Act 1997 (Vic)). A document can constitute almost anything which records the person’s testamentary intentions. Whilst there are a number of important criteria to address when making an application for a grant of an informal Will, one of the most important questions is whether the person intended the document to be his or her Will.
Recent case law
Some recent examples of successful informal Will applications include:
- Re Flanagan [2021] VSC 649: A handwritten Will contained in a sealed envelope in the deceased’s home entitled ‘WILL’ which was signed but not witnessed and contained two different dates (16 Feb 2019 and 16th February [sic] 2020).
- Merry; State Trustees Ltd v King [2021] VSC 564: A document that was not witnessed in the presence of two witnesses – one of the witnesses signed at a later time to the deceased and the first witness.
- Re Logan [2021] VSC 131: An unexecuted Will that contained the deceased’s handwritten amendments and signature, but was not witnessed.
- Re White; Montgomery v Taylor [2018] VSC 1: A Word document on the deceased’s computer created shortly before the deceased’s suicide.
- Cook v Westwood [2017] VSC 509: A document that was typed in the form of a Will precedent but was unsigned and unwitnessed.
A word of caution
However, caution should always be exercised when seeking to rely upon an informal Will because, just as there are a number of examples of successful applications, there are plenty of examples where applications have not been successful.
Best practice is to ensure that your Will is validly prepared and executed but keep in mind that these provisions are available should the need arise. Please do not hesitate to contact us should you have a document which you believe may purport to be a Will.
