Your will and final testament is an important document that should be taken seriously. It should always be formally prepared by a legal professional in order to make your will legally binding and should not be left to chance. There have been cases – some recent ones in Queensland even – where a will is prepared outside of a lawyer’s office and some important criteria is missed, resulting in costly problems and legal battles for their remaining loved ones to work through in court.
What is an informal will?
An informal will is a document which outlines the testator’s intentions and wishes, however it does not meet the formal requirements of the legislation to be considered a will. For example, often people who have created their own will at home using a “free will kit”. Without professional legal guidance, often people fail to have this document witnessed by the right people or miss critical information, meaning it is not legally binding.
The courts have seen many different types of informal wills including:
- Suicide notes which outline how any remaining assets will be allocated
- Handwritten notes or diaries of the deceased
- Scribble on the wall from a dying person
- Last wishes contained in a plastic water bottle of a lost bush walker or missing person.
Will an informal will be accepted by the court?
Each case of an informal will is closely examined by the courts about the validity and probabilities of the case. Typically, the court will examine the following elements closely to determine whether they will accept this in the absence of a formal will:
It must be some type of document, even if that is a piece of paper, an audio recording or video recording.
Intends to outline the deceased’s testamentary wishes
When reviewing this, it must very explicitly outline the allocation of the deceased’s assets in the event of their death.
Is intended to be a will?
This document is intended to act as someone’s will, rather than a draft of something that they later hope to turn into a will.
The court will closely examine the contents and intent of the document, the circumstances surrounding its creation document, how, when and where the document was located, and other evidence surrounding the death before coming to a decision.
There have been many cases in Australia where informal wills have been successfully accepted by the courts, however there have also been even more examples where they have been rejected.
Final note on informal wills
It is important for people to recognise the importance of making a formal will in the presence of lawyers as soon as possible and not relying on a handwritten will or will kit that has not met the legislative criteria needed.
If you have found any documents from your loved ones who have passed away that look like they could be some sort of informal will, we recommend you get in touch with a solicitor as soon as possible to discuss your options.