Informal Wills

In NSW the Succession Act 2006 is the relevant legislation dealing with the formalities involved in executing Wills.  The issue of “informal Wills” was recently considered by the Court of Appeal in Victoria in Sultanova v Bolgarow (2019).  While that case was decided in another State it reached conclusions of law and fact which are relevant to virtually all Wills made in NSW. 

The facts in that case were as follows:

  • The Testator made a Will during the course of an appointment with her Solicitor;
  • The Solicitor took extensive file notes, then wrote to the Testator and advised that her Will was ready for signature. The letter gave a summary of the contents of the draft Will;
  • Shortly after receiving that letter the Testator telephoned her Solicitor and told him that the draft Will she had read was… “exactly what she wanted”;
  • In trying to make an appointment to execute the Will the Testator indicated to a secretary of the Legal Firm that she did not want to deal with any other Solicitor and would wait for an appropriate appointment time with her choice;
  • Shortly after the telephone call with her Solicitor the Testator unexpectedly died.

The Court of Appeal, by majority, noted that the real issue to decide was whether or not the Testator had adopted the unsigned Will as her final Will.

The finding of the Court of Appeal was based on the peculiar facts of this particular case but, on balance, the Court held that it was clearly the Testator’s intention to not only make the Will, but to record it in writing and to later acknowledge that its contents were “exactly” in accordance with her instructions.

The unsigned Will was probated.  The estate was administered in accordance with that informal, unsigned document.

There are other cases decided differently, but all based on the individual facts of each case.  It is important that our clients understand that in making a Will their instructions must be clear, the Will must record those instructions accurately and (in the absence of execution of the Will) there must be some form of express acceptance of the terms of the document prepared by our Solicitors.

In this particular case, it is our view that should the Solicitor have not been instructed to prepare a Will in the manner consistent with the facts of this case, the Testator would have died intestate.  In other words, without a Will.  In those circumstances the Beneficiaries named in her Will would have received no benefit from her estate.  An outcome she did not want.

To start a discussion in relation to the making of a Will or to check your existing Will, please make an appointment with:

 

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chambers@gibsonhowlinlawyers.com

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