‘Informal Wills’ – Just not Worth the Risk or Expense!
A recent trend in decisions by the Supreme Court of Queensland highlights the importance of getting good legal advice when making a Will.
In order for a Will to be valid in Queensland, it must meet certain formal requirements. These requirements exist to ensure that the Will expresses the Willmaker’s true testamentary intentions. It also assists by ensuring that the Will is not the result of impaired capacity, undue influence or fraud.
Legislation in Queensland allows the Court to dispense with these requirements and to accept what are known as ‘informal Wills’. The Court will only accept an informal Will if it is satisfied that there is a document that records the Willmaker’s intentions, and that the Willmaker intended that document to be their final Will. The Courts have been asked to determine the validity of various “documents” including a Will written in the page of a diary and not witnessed, a document saved on a hard drive of a computer but not printed or signed and suicide notes.
Recently, an unsent text message was accepted by the Court (in QLD) to be a valid Will (Re Nichol). The text contained directions about who should receive the writer’s property after his death, and what should be done with his remains. The text message signed off with the words ‘my will’.
A video recording contained on a DVD was found to constitute a will (Mellino v Wnuk;Re Estate of Wai Fun Chan, Deceased).
The Court has also recognised the validity of an electronic ‘will’ created on an iPhone (Re Yu) and in recent weeks, Judgment was given and probate granted in a well-publicised case regarding a mobile phone video will.
On the contrary, the Courts have rejected arguments concerning instructions for new Wills and draft Wills which have not been signed (Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger  QSC 245).
While informal wills can sometimes be accepted by the Court, these recent cases only go to further reinforce the importance of obtaining legal advice in succession when preparing and executing Wills. By not doing so, not only do you leave open the possibility that your true wishes may not be followed but you pass up the opportunity to consider the various structuring opportunities that might be available to your family after your death. This may also result in your estate being required to fund time consuming and costly litigation.
If you or your clients wish to begin the succession planning process, please contact us.