The Validity of an Informal Will

Lauren McIntosh, associate in our Wills and Probate team, makes an observation on a recent Australian case.

A court in Queensland Australia has, this month, made an interesting ruling regarding the validity of an informal will.

The deceased wrote a text message which he saved into his drafts stating that he wished for his estate to pass to his brother and nephew. Despite this message not adhering to Australia’s usual validity rules, as it was neither signed nor witnessed, the court ruled that the draft text constituted a valid last will and testament.


Whilst this has set an interesting precedent in Australia the current rules in England and Wales still require Wills to adhere to strict formalities. For a valid will in England and Wales the will must comply with the Wills Act 1987 and must be;

  • in writing;
  • signed by the testator and be clear that the testator meant for that signature to give effect to the will;
  • witnessed by two independent parties who also sign the will.

If any one of the above is not complied with the document will not stand as a valid will.

Whilst this ruling may appear to be an advantage for Australians, as it makes it easier for them to make informal wills, it should be remembered that wills are arguably one of the most important documents that someone can make. As such they are complex documents which can, if not made with the correct advice, result in the testators wishes not being clear or not being written in such a way which achieves their intentions. This could result in the estate not being distributed in accordance with what the deceased wanted and could lead to potential conflict between beneficiaries.
You may therefore want to think twice before relying on that draft text, or note you have written, as your last will and testament, in England and Wales at least.


If you have any questions or wish to seek advice on any issue concerning the writing of a will or management of an estate, please call Lauren on 01329 822 333.

 

October 2017

 

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