Informal wills – Can a Court honour your intentions?
The recent case of Re Wallace [2024] VSC 22 deals with an application to admit an informal will to probate, sheds light on the complexities surrounding informal wills and the importance of testamentary intentions.
Michelle Wallace passed away at the age of 50 following a sudden stroke. Michelle left behind a document dated 22 March 2019, labelled as a ‘joint will’ for herself and her husband, David Wallace. This document was not made with the assistance of a legal practitioner and included various notes, initials and abbreviations that purport to be about who the executors are, what gifts are to be made, what the distributions are and establishment of a testamentary trust. This document, however, did not meet the formal requirements for a will under the Wills Act 1997 (Act). Nonetheless, individuals named in the document as executors sought a grant of probate under section 9 of the Act, which allows for the admission of informal wills under certain conditions.
The court emphasised three essential requirements for admitting an informal will to probate under section 9. Firstly, there must exist a tangible document expressing the deceased’s testamentary intentions. Secondly, the document must clearly demonstrate that the deceased intended it to serve as her will. Finally, the propounder of the informal will must establish these elements on the balance of probabilities, following the Briginshaw principles reflected in section 140 of the Evidence Act 2008 (Vic).[1]
Central to this case was the determination of Michelle’s intention for the document to be her final will, which necessitated a demonstration of her testamentary capacity at the time of its creation. The court, after careful consideration, was satisfied that Michelle possessed testamentary capacity when she executed the document.
Notably, Michelle and David prepared the document hastily before embarking on a trip to Fiji, recognising the inherent risks of travel and the lack of time to consult a solicitor. Despite its informal nature, they informed one of the executors of the document’s existence while en route to the airport, underscoring their awareness of its significance.
The court’s decision underscores the importance of understanding testamentary intentions and the flexibility afforded by section 9 of the Act. In situations where formal requirements may not be met, courts aim to honour the deceased’s true intentions while ensuring fairness and legal integrity.
Michelle’s case serves as a reminder for individuals to carefully consider their estate planning needs and seek professional guidance to avoid ambiguity and potential disputes. By understanding the nuances of succession law and testamentary requirements, individuals can effectively safeguard their legacies and provide clarity for their loved ones during challenging times.
You can read the full decision here: https://austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/22.html
[1] Briginshaw v Briginshaw (1938) 60 CLR 336