Informal Wills
Most people know that a will needs to be in writing and signed in front of two witnesses (Wills Act 1997, s7). The court can, however, dispense with those formal requirements if it is satisfied that a person intended a document to be his or her will (Wills Act 1997, s9).
The definition of “document” in the Interpretation of Legislation Act 1984 (s38) is very broad and includes, for example, devices on which sounds and/or visual data can be recorded. So an informal will can be admitted under the dispensing power even if it is not in writing.
Examples of documents that have been admitted to probate under the interstate equivalents of s9 of the Wills Act 1997 include:
It is not prudent to encourage testators to make wills in these informal ways, as the time and expense involved in applying to the court for the dispensing power to be exercised will not be appreciated by their beneficiaries.
When taking instructions in relation to a deceased estate, however, it is important to be aware that the deceased may have created a document which was intended to be a will, and in these days of smartphones, tablets and laptops it makes sense to investigate whether any such document exists.
Another time when it pays to remember the dispensing power is when there is some urgency to put a will in place but there is no second witness available or for some other reason the formal requirements cannot be met. This can happen in a deathbed situation, and it can be very difficult to know what to do. If your client wants to put an informal will in place as a stopgap, then it is important to remember that the critical thing that the court will be interested in is whether the client intended the document (whether it is a recording, notes of will instructions or a hastily written simple will) to be his or her will. A clear statement by the client to that effect accompanied, if possible, by a signature will improve the prospects of a successful s9 application.
Source LIJ Oct 2014 – Author Jennifer McMillan College of Law