Oct172023
Proving Informal Wills

Proving Informal Wills

Wills

Is a document typed out on a mobile phone a will? The validity of unsigned wills.

A last Will typed out by the deceased in the notes section of an iPhone was recognised by the Queensland Supreme Court as a valid Will. Here, the deceased sadly took his own life. Shortly before he died, he created a series of documents on his iPhone, most of them final farewells. One was expressed to be his last Will. The Supreme Court found that the document in the iPhone embodied the testamentary intentions of the deceased and was made in contemplation of the deceased’s imminent death. In the circumstances, the Supreme Court was satisfied that the deceased intended the document created on his iPhone to form his Will.

In another case, where the deceased also committed suicide, the New South Wales Supreme Court held that a Microsoft Word document labelled “Will.doc” completed by the deceased and found in his laptop after his death formed the last will of the deceased and was admitted to probate.

The above two cases highlight the importance of giving due consideration to documents left behind by a deceased that may not conform to the traditional format of a Will, namely a document that is printed or in handwriting and which is signed by the deceased before 2 witnesses. Under Part 1X of the Wills Act (WA) 1970, the Court has the power to dispense with the formal requirements for a Will and instead recognise a document made by the deceased as a valid Will.

The Law on Informal Wills

Under section 32 of the Wills Act (WA) 1970, an informal Will is recognised as a valid Will if the following criteria are met:-

  • there is a “document”;
  • which purports to embody the testamentary intentions of a deceased person even though it has not been executed in the manner required under the act; and
  • the Court is satisfied that the person intended the document to constitute the person’s will.

In the Wills Act (WA) 1970, a “document” is defined as “any record of information” including —

  • anything on which there is writing; or
  • anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
  • anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
  • a map, plan, drawing or photograph.

The wide definition of a “document” means that all manner of information which records the deceased’s testamentary intentions including handwritten notes, typewritten documents, video recordings, photographs, drawings and documents created on a phone, tablet, laptop or desktop are relevant in considering whether the deceased left behind an operative will.

Having regard to the wide definition of a document, does this mean that any document left behind by the deceased would constitute a valid will?  How about drafts which a deceased may have prepared on his or her computer?   What about handwritten notes detailing the distribution of assets in the event of death?  Such documents may have been “dry runs”, preparatory notes or mere thoughts which the deceased may have made before finalising his or her testamentary intentions.

Under section 32 of the Wills Act (WA) 1970, the focus in proving an informal Will is whether the document embodies the testamentary intentions of the deceased, namely the distribution of the deceased’s assets upon death and whether the deceased intended the document to constitute his or her last Will.  In forming its view, the Court may have regard to the document itself and to any evidence relating to the manner of execution or testamentary intentions of the person, including statements made by the person.

A document which embodies the deceased’s testamentary intentions is by itself not sufficient.  There must be evidence which satisfies the Court that either at the time the document was brought into being or at some later time, the deceased, by some act or words, demonstrated that it was his or her intention that the document should operate as his or her will.

If you are the executor named in the last will or an intended administrator of an intestate estate or simply a family member of a recently deceased person, it is imperative that you preserve the personal papers and effects of the deceased.  A document may be found among the deceased’s personal papers and effects which contains the deceased’s testamentary intentions or the alteration or revocation of an existing will or the revival of a previously revoked will.   In today’s technological world, this will include all electronic devices capable of creating and storing information such mobile phones, tablets, laptops, desktop computers and video recording devices.

Notwithstanding that the Court has power to admit an informal will to probate, the most prudent path is to make a formal will.  An informal Will leads to great uncertainty as the Court may not be satisfied that the deceased intended the document to constitute the deceased‘s last Will.  Besides the uncertainty, proving an informal may be a costly and emotional affair for the beneficiaries.

Over the years, Robertson Hayles Lawyers has had to assist beneficiaries to seek the admission of unsigned documents to probate, sometimes in sad circumstances where a deceased left a message on the distribution of assets before committing suicide.

If you require advice in relation to informal wills created by a deceased, please contact Robertson Hayles Lawyers at 9325 1700 or by email at enquries@robertsonhayles.com

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.

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Sep212023
Powers of Attorney

Powers of Attorney

Wills, Deceased Estates
In WA, there are two types of Powers of Attorney which an individual may enter into:

  • General Power of Attorney
  • Enduring Power of Attorney

Rationale for Making A Power of Attorney

Many are under the impression that we are only required to make a power of attorney if we are in business, have investment assets or are reaching old age. This is far from the truth.

Almost all of us hold some form of assets such as real estate, money in a bank account, vehicle, shares or a business. At some point or other, we travel for work or holidays during which time, an issue relating to our financial affairs may crop up. Young or old, we are not invincible. We may suffer the misfortune of losing mental capacity, temporarily or permanently, as a result of an accident or illness. During these times, it is vital that a person has been appointed as our attorney so that financial affairs can be dealt with quickly to meet our medical, personal or our family’s needs.

Power of Attorney Lawyers

There are therefore good reasons for you to consider making either a General Power of Attorney or an Enduring Power of Attorney. Robertson Hayles Lawyers have many years of experience as Power of Attorney Lawyers. Being experienced Power of Attorney Lawyers, we are able to provide you with advice and prepare the necessary power of attorney to suit your needs.

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Jul122023
Gosh, he did not have his marbles when he made the will - is it valid?

Gosh, he did not have his marbles when he made the will – is it valid?

Wills, Deceased Estates

Often, when dealing with estate disputes, we hear family members commenting on the deceased’s mental capacity and querying the validity of the Will made.

In estate disputes, the will-maker or testator’s lack of mental capacity to make a Will may form the basis for challenging the Will. Such cases have increased over the years.

This is unsurprising as dementia is a leading cause of death in Australia. Dementia is a term used to describe a group of conditions that affect the brain’s normal function. These conditions may affect memory, thinking, speech, mobility and personality. Dementia Australia, the peak body representing people who have dementia and their caregivers estimate that in 2020, 459,000 Australians are living with dementia and that without a medical breakthrough, this is expected to increase to 590,000 by 2028 and 1,076,000 by 2058.

The courts have consistently held that in determining whether the testator had the “soundness of mind” to make a Will, the test is whether the testator was sufficiently clear in his or her understanding of the following:-

  • The nature of the document, namely that the testator was making a Will.
  • The nature and extent of the testator’s assets including real estate, cash, superannuation, shares and other investments.
  • The persons the testator was nominating as beneficiaries under the Will and in relation to such nomination, the persons who could make a claim against the testator’s estate if they were left out or were not adequately provided for under the Will and the moral obligations that the testator owed to such persons.
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Feb272023
How can I stop my will being challenged when I pass away?

How can I stop my will being challenged when I pass away?

Deceased Estates, Wills

Recent studies show that about 60% of all Australians have a will with the number rising to over 93% for those aged 70 years and above. Most people who have wills do so as they believe it is important that they provide for their loved ones, primarily their children and their spouse or partner.

There is however no data as to the number of these wills being challenged when the will maker dies. Based on newspaper reports and our experience as legal practitioners, there is an increasing number of wills that are challenged by family members who were left out of the will or who felt that their inheritance was inadequate.

We often read in the newspapers of high-profile claims against a deceased estate.  A recent example is the estate of the former Australian Prime Minister Bob Hawke who died in 2019.  In his will, he left the bulk of his $18 million estate including his home in Sydney worth about $15 million to his second wife, Blanche d’Alpuget. He gave $750,000 to each of his children from his first marriage. One of Bob’s children sued his estate for an additional $4.2 million claiming that her father’s gift of $750,000 did not meet her needs. She stated in her affidavit that she had mental health issues, was reliant on welfare and needed more money from the estate to buy a house, pay for dental implants and other expenses. This claim went to mediation and recently settled for an undisclosed sum.

It is not only large estates that experience challenges to the will. We see increasing challenges to wills in smaller estates with assets of less than $500,000.   The impact of such challenges means the asset pool available for distribution is reduced as a result of the legal fees payable by the estate in defending the claim. Challenges also mean that the distribution of the estate is delayed, impacting on beneficiaries who have an urgent need for funds. Often, challenges to wills result in close family members being estranged from each other.

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Aug202020
Do I need a grant of probate or letters of administration?

Do I need a grant of probate or letters of administration?

Deceased Estates, Wills

A checklist for the Intended Executor and Administrator of a Deceased Estate

When a person dies with a Will, the executor named in the Will is expected to apply to the Supreme Court for a grant of probate so that the executor has the authority to deal with the assets of the deceased. Similarly, when a person dies without a Will, a beneficiary of the estate would be expected to apply for letters of administration and be appointed the administrator of the estate and thus have the authority to deal with the assets of the estate.  While this is usually required, there may in fact be situations where there is no requirement to apply for a grant of probate or letters of administration.

Whether a grant is needed depends on the composition of the estate. An executor or the intended administrator should seek legal advice before making an application to the Supreme Court for a grant, in certain circumstances, the estate may not need a grant so you can avoid incurring the cost of the application.

Robertson Hayles Lawyers offers an initial consultation at a fixed fee. You will be able to obtain advice from an experienced lawyer about whether a grant is required and what the next steps are to take with distributing the assets to the beneficiaries.

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