Informal Wills (NSW)

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In New South Wales, a formal will must comply with the requirements set out in the Succession Act 2006. An informal will is a record of testamentary wishes that do not abide by these statutory requirements. This article explains the regulations that pertain to formal wills and the process to validate an informal will in New South Wales.

What Constitutes A Formal Will In NSW?

In New South Wales, a testator must execute a will correctly for the document to be considered a valid and formal will.  Specifically, the document must comply with the following requirements:

1. A formal will must be in writing; and
2. The testator must sign the will, or someone else must sign on their behalf in the presence of the testator; and
3. Two witnesses must watch the testator sign the document and sign the will themselves; and
4. The testator must sign with the intention of executing the will, although the signature does not have to be at the end of the will; but
5. The will does not have to have an attestation clause.

What Is An Informal Will In NSW?

Under Section 8(2) of the Succession Act 2006, the Supreme Court of NSW can probate (that is, legally endorse) an informal will that does not meet the above requirements. The onus is on the probate applicant (usually the executor of the informal will or chief beneficiary) to establish that the testator intended the document to act as a will. The court will make a decision depending on how the document was executed and any evidence of the deceased’s testamentary intentions. Essentially, the court can have regard to any matter that it considers relevant to the case.

The court follows the precedent set out in Hatsatouris v Hatsatouris [2001] when considering whether to validate an informal will. According to this common law precedent, a document is likely to be considered a will if it complies with the following criteria:

1. The informal will is a written or electronic document;
2. The document embodies the testamentary intentions of the deceased; and
3. The court is satisfied that the deceased intended the document to operate as their will.

Case Studies On Informal Wills In NSW

The Supreme Court of NSW has heard numerous cases on the validity of informal wills.  

For instance, in Borthwick v Mitchell [2017], a man in hospital dictated his last wishes to his daughter, intending to later execute a formal will. The daughter recorded these notes under the heading “Dad’s wishes”. The Supreme Court accepted that this document constituted a valid informal will even though the testator did not sign the notes or even read through them. The court held that the deceased intended the notes to take immediate effect as a “Stopgap” will until he could formalise his testamentary arrangements.

There have also been several cases of individuals leaving unsigned testamentary documents on a computer, video, DVD, tape recording or another electronic device. In 2015 the Supreme Court considered whether a computer document was an informal will in the Estate of Roger Christopher Currie. The deceased passed away unexpectedly, and his friends could not find a paper copy of his will in his home. They were, however, able to find an encrypted USB stick that contained a document that began, “this is the last will and testament of Roger Christopher Currie”. This document appointed an executor, made specific bequests and assigned residuary legatees. The document stated that the deceased “signed” the document on 1 April 2009. The court was satisfied that the deceased intended the document to act as his last will based on the following facts:

• The deceased had informed a friend that he had left his will on an encrypted drive;
• The language of the document was clearly “testamentary” in nature;
• The document stated that it was “signed” by the deceased; and,
• The deceased was aware of the law relating to informal wills because of a dispute over his late mother’s informal will.

However, the Supreme Court has not accepted all documents as valid informal wills even when the testator leaves clear testamentary instructions. The court refused to grant probate for an unsigned will in Bell v Crewes [2011], even though the deceased instructed his wife (a solicitor) to draft a new will. Because the deceased died before he could review or sign the will, the court found that the testator never intended the document to act as it stood “without more”.

Recently, the New South Wales Court of Appeal affirmed this position in Rodny v Weisbord [2020]. This case considered whether a solicitor-prepared (but unsigned) document was a valid informal will. The Court of Appeal declined to validate this testamentary document as an informal will. Although it embodied the deceased's testamentary intentions, it was not clear that the deceased intended the draft document to take effect as her will. As the court ruled the will invalid, it granted probate on an earlier valid will.

The civil lawyers at Go To Court Lawyers can help if you require assistance with validating an informal will. Please do not hesitate to get in touch with our specialist solicitors on 1300 038 223.