The Will to prepare a Will: A Discussion on Informal Wills and the Necessary Intention

  • Home
  • Wills & Estates
  • The Will to prepare a Will: A Discussion on Informal Wills and the Necessary Intention

The best way to have an effective will, which shall be able to be used by those left behind to more easily complete your wishes, is to have a document that properly sets out your wishes and complies with legal requirements.

Sometimes unfortunately life (or death), gets in the way and a person is only able to manage an con-compliant, or informal will before they passed away. While not in NSW, a historic example is the farmer who was pinned under his tractor and scratched out a brief will on the fender with his pocket knife “In case I die in this mess I leave all to the wife. Cecil Geo Harris”

While the Supreme Court of NSW does have the power to dispense with the formal requirements for a will, not all tractors or other documents will be accepted by the Court, and a big element is the test for the intentions of the deceased. Proving the intentions of a deceased person are not always easy, and the Court in recent years has made many attempts to try to create and refine a test to determine a person’s intention, and the timing of when the intention is considered

A Valid Will

In NSW, Section 6 of the Succession Act 2006 (NSW) requires that a valid Will be:-

(a) in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

An Informal Will

The Court dispense with the formal requirements for execution of wills per Section 8 of the Act, if a document

            (a) purports to state the testamentary intentions of a deceased person, and

            (b) has not been executed in accordance with the Act.

 In making a decision, the Court may, in addition to the document, have regard to–

            (a) any evidence relating to the manner in which the document or part was executed, and

            (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

Timing of Intention for Interim and Stop-Gap Wills

During the mid-1990s, cases such as Estate of Masters (1994) In Permanent Trustee Co Limited v Milton (1995) confirmed that wills could be established for an interim period, until the more formal will was signed. If given the opportunity, and the formal will wasn’t then signed, these cases indicated that the interim will would then fall away.

Timing of Intention following Hatsatouris v Hatsatouris [2001]

In Hatsatouris, the Court found that a document, when brought into being or signed with the relevant intention at that time to be a person’s will, could only be subsequently revoked by deliberate actions required to revoke a valid will.

“Nothing More” Test

 Hatsatouris provided a 3 part test for trying to determine the intention of an informal document:

(a) was there a document,
(b) did that document purport to embody the testamentary intentions of the relevant Deceased?
(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?”

In Estate of Laura Angius; (Angius v Angius [2013] Hallen Jseemed to water down the “nothing more” element, noting that, “the use of the words “without more on her, or his, part”, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to “state the testamentary intentions of the deceased person”, and then determine whether the Court is satisfied that the deceased person intended that particular document to form his, or her, Will…the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question. Both elements need to be satisfied.”

While this may help to fix an imperfect situation, the best way to avoid being at the mercy of the discretion of the Court is to make sure that you have a formal will that properly sets out your current wishes.

If you need help preparing a will or administering a will, formal or informal, contact Baker Love Lawyers.

Subscribe To Our Newsletter