Contesting An Informal Will

What is a Will?

A Will is a legal document that clearly sets out a person’s wishes for the distribution of their assets after death. It lets a person decide how their belonging such as cars, family heirlooms and real property should be distributed. It also lets them direct what is to happen with their body upon death, request any specifics with regards to funeral arrangements and choose a trusted person or persons to carry out the task.

There are certain formalities listed in the Wills Act 1997 (Vic) which makes a document a valid Will. These include:

  • The Will maker must have attained the age of 18 years to make a valid Will (with a few exceptions)
  • The Will, in writing must be signed by the Will maker or by some other person in the presence of and at the direction of the Will maker
  • The signature must be made with the Will maker’s intention to make the Will
  • The Will maker must sign the Will in the presence of two witnesses present at the same time
  • The two witnesses must sign the Will in the presence of the Will maker (but not necessarily in the presence of each other)

What is an informal Will?

An informal Will is a document which does not comply with the aforementioned formalities, but still lists the testamentary wishes of the Will maker.

Section 9 of the Wills Act 1997 allows an informal Will to be admitted to probate as the Will of the deceased, if the Court is satisfied on the balance of probabilities that the deceased had testamentary capacity at the time and intended that the document be his or her Will.

In order for the Court to be satisfied, the person propounding an informal document must prove three things:

  1. That the document in hand is caught under the definition of a document in Section 9 of the Wills Act 1997. So it must be…
    • anything on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them; or
    • any disk, tape, soundtrack or other device in which sounds are embodied and also film, negative or tape or other device in which visual images are embodied
  1. That the document records the testamentary wishes of the testator (eg: not gift during lifetime, or a variation of a mortgage or a contract); and
    • Ie it must deal with a disposition of property in contemplation of death
  2. The document was intended without anything more, to operate as a will
    • This means that the deceased’s wording can’t be mere wishes or requests
    • To prove intention the Courts may admit direct statements by the deceased, evidence surrounding the execution of the document such as notes the deceased had written about the document, or notes of the solicitor who made the Will

Example of Informal Wills

Below are three cases which assess the validity of an informal Wills and discuss the evidence required to prove an intention that the document was to operate as a Will. As you will see, there needs to be clear evidence and supporting documentation to suggest an intention, and the pattern of case law suggests that a document produced in close proximity to a suicide holds the greatest likelihood of being treated as a valid Will.

Valid Computer Will – Re White; Montgomery & Anor V Taylor [2018] VSC 16

In a very recent Victorian case, an informal computer document was held by Justice McMillan to take effect as the deceased’s last Will.

The deceased typed on the computer an informal Will before he took his own life via overdosing on alcohol and prescription medicines. The Will appointed the deceased’s sister, brother-in-law and domestic partner as executors, listed assets, set out a number of directions and gifts, and also created a trust in which the deceased’s domestic partner had a 10% share. At the beginning of the document the deceased also stated that it had “been prepared in order to express final wishes as to the distribution of assets and belongings”.

The deceased’s sister and her husband sought a grant of probate on the informal document. However, the deceased’s domestic partner opposed the application on the grounds that the deceased did not intend for the informal will to be his Will, and that he lacked testamentary capacity at the time of its creation.

The domestic partner’s main submission in relation to a lack of intention was that 10% of the testamentary trust to her, a partner of 16 years and mother of three of this children seemed “improvident, harsh and capricious”.

In relation to testamentary capacity, the domestic partner argued that due to the suicide he was clearly suffering from an undiagnosed mental illness.

Justice McMillan did not accept either of the domestic partner’s submissions. In relation to intention, she reasoned that the fact the informal Will referenced final wishes; was named ‘Will and Testament’; was made only hours before the deceased took his life; was an easy to locate document where he had emailed instructions on how to do so; and was saved in a folder which included a letter to the deceased’s solicitor alerting him to the informal Will together prove that the deceased had the requisite intention. Regarding testamentary capacity, the Judge noted that suicide alone does not give rise to the presumption of mental illness or testamentary incapacity.

Valid Text Message – Re Nichol; Nichol v Nichol [2017] QSC 220

In a recent Queensland case, the court found that a draft text message found on the phone next to the body of the deceased who had also committed suicide was a valid Will.

The draft text message stated the date, was titled “my will” and included that the deceased was to make no provision to his spouse, his superannuation and house were to go to his brother and nephew, his ashes were to be placed in the “back garden” and provided the pin to the bank account where his funds were held.

The deceased’s brother and nephew made an application to the Court to have the text message recognised as the deceased’s last Will under the QLD law akin to Section 9 of the Wills Act 1997 Vic.

The deceased’s spouse however claimed that the text message cannot be considered a Will, and as the deceased had no prior Wills she made an application for a grant of letters of administration in intestacy. If granted, this would have given her priority to the Estate.

The Court ordered that the text message operated as a Will and therefore can be admitted to probate. This being that the deceased addressed how he wanted to dispose of his assets and specifically who to, it was produced at or around the time the deceased was contemplating death, the message was detailed and included the words “my will”, there were no contrary wishes or intentions in relation to his estate included in the text message and the phone was located with the deceased at the time of death so it was clear the text was drafted by him. Further, the judge held that the fact the deceased did not send the text message did not suggest he did not want it to act as his Will, on the contrary it was simply so that he did not alert the receiver to his suicidal intention.

Invalid Computer Will – Mahlo v Hehir [2011] QSC 243 (invalid)

We can compare the Victorian case of Re White to a previous Queensland case of Mahlo v Hehir, where an electronic document left on a home computer was not considered to take effect as the deceased’s last Will.

In this case, evidence was given that the deceased knew the appropriate procedure as she had made a formal will through a solicitor only months prior to the electronic document.

As a result it was held that the electronic unsigned document was not a valid Will, as the deceased knew the procedure of what would constitute a valid Will and thus is could not be proven that this document was intended to operate as a Will and revoke her previous formal one.

Importantly, this case was not in the context of a suicide which clearly has a very persuasive effect on the outcome.

Can you contest an informal will?

Once probate has been granted on an informal Will it operates just as any valid Will does. This means that any one eligible as the right to contest the contests of the document now serving as a Will.

Eligible people include:

  1. Spouse or domestic partner at the time of death;
  2. Child of the deceased (including adopted or step child, or someone who believed the deceased to be their parent and was treated as such);
  3. A registered caring partner;
  4. A grandchild;
  5. A person who was (and was likely to be in the near future) a member of the deceased’s household.

Once eligibility has been determined, the applicant has to prove that the deceased had a moral duty to provide for their proper maintenance and support (eg, you were maintained by them at some point in time).

Last, the applicant has to prove that the distribution of the deceased’s estate as set out in the Will (informal document) fails to make adequate provision for their proper maintenance and support.

The Courts consider a multitude of factors to determine what would be a fair and just outcome. These considerations include, but are not limited to – the deceased’s Will, evidence of the deceased’s reasons for making the Will in the terms that he/she did, any evidence about the deceased’s relationship with the applicant, obligations/responsibilities the deceased had to the applicant, any physical or mental disability of the applicant, the applicant’s character, financial resources and needs of the applicant, the size of the estate and any contributions made by the applicant to building up the estate.

How long do you get to contest?

Once probate has been granted on the informal document, just as you would with a formal Will you strictly have 6 month in order to contest and make a claim for further provision. Out of time is often synonymous with “out of luck” although in some exceptional circumstances an extension of time will be granted. However, it is always best not to risk it and just apply in time!

If you have any queries, our Contesting a Will FAQs are a great place to start.

Alternatively, if you have a document which you want to get through as a valid Will or want to challengecontest or defend an informal Will, do not hesitate to contact the team at Hentys Lawyers today.