Is an informal will ok?
Although there are strict guidelines in Victoria about how a Will must be executed, unfortunately some Wills fall short of these guidelines.
This can result in expensive and time-consuming Court proceedings where the Supreme Court of Victoria will determine whether an informal document constitutes a valid Will.
A recent Supreme Court case, Re Logan [2021] VSC 131, provides insight into how the Court assesses “informal Wills”.
Facts of Re Logan
The deceased had a Will (“the Will”) prepared by his lawyer in 2011, which complied with legislative guidelines.
The deceased’s Estate was valued at around $1.79 million.
The Will appointed the deceased’s brother as Executor and the two Plaintiffs as substitute Executors, and made numerous gifts, including (amongst other things):
$120,000 to each of the two Plaintiffs
Proceeds of sale of a Geelong property to be split between the Plaintiffs and the deceased’s brother
The residue of the Estate to be split between 11 beneficiaries (which included the deceased’s brother, but not the Plaintiffs).
Since the date of the Will, the Geelong property was sold, 3 of the residuary beneficiaries had died (including the deceased’s brother), and a great-niece was born.
In 2020 the deceased hand amended and re-signed a copy of his Will, but it was not witnessed (“the informal Will”). The original Will was stored with the deceased’s lawyer.
The deceased’s amendments included (amongst other things):
The Plaintiff’s gifts were increased from $120,000 to $260,000
The deceased beneficiaries were deleted, and the great niece was included
The gift of the Geelong property was deleted
The deceased died 4 months later, and the Plaintiffs sought Probate of the informal Will.
Each of the adult beneficiaries consented to the informal Will being admitted to Probate.
3 minor beneficiaries (who were beneficiaries under both the Will and the informal Will) were affected by the application. 1 of these beneficiaries was the great-niece, who benefits from the informal Will, and 2 of the beneficiaries would have their entitlement reduced by around $13,000 under the informal Will. When there are minor’s involved, sometimes the Court can choose to appoint a “contradictor” to represent their interests – however here the Court chose not to as the additional costs could not be justified (due to the strength of the informal Will application).
Judgement
In accordance with section 9 of the Administration and Probate Act 1958 (Vic), in assessing an informal Will, the Court must be satisfied of three criteria:
There was a document left
The document records the testamentary intentions/wishes of the deceased
The deceased intended the document should operate as a Will
In this matter the Court found that the above criteria were established, and the informal Will was admitted to Probate.
The Court relied upon some of the following reasoning:
The deceased (aged 93 at the time and living in aged care), indicated to one of the Plaintiffs that he needed to update his Will, and requested her updated address. The Covid-19 pandemic then commenced, leaving the deceased locked down in his aged care facility and unable to visit his lawyer.
It was clear the deceased intended the document to be his Will, as the informal Will began with the words “My updated Will as from 17 April 2020”.
The changes in the informal Will were rational and logical, and acknowledged the deceased’s change in circumstances, including the sale of his property, the death of some beneficiaries, and the birth of a great niece. It also dealt completely with all assets of the deceased.
The deceased stored the informal Will in a folder with other important financial documents.
There was no evidence to suggest the deceased lacked capacity to make the informal Will.
Although the Supreme Court has discretion to admit an informal Will into Probate, the outcome is certainly not guaranteed and can be expensive.
By making an appointment with a lawyer at OFRM you can avoid extra stress on your loved ones in an already difficult time by ensuring you have a valid Will.
Additionally, if you believe you have located an informal Will, the team at OFRM are able to assist. You can book an appointment through our website, or phone myself on 03 5445 1063 to have a chat first.