Informal and Invalid Wills

When it comes to preparing and executing a valid Will, several factors need to be taken into account to comply with legal requirements.

A Will is a legal document that sets out individual testamentary wishes. This comes into effect once you have passed away. A Will outlines one’s wishes regarding details on your estate, including who you want to inherit your estate assets. (E.g. specific gifts, family heirlooms, share portfolio, company directorships), as well as your preferred Executor(s).

A Will also outlines other personal matters. This can include who will be granted guardianship for your surviving children. (If under the age of 18 years.)

Often, thinking about writing a Will can be a daunting task and something that can often be put on the back burner. It may have even crossed your mind to attempt writing up a testamentary document yourself. But, despite your best efforts to sign and write a document outlining your final wishes, it may be deemed Informal, or Invalid and entirely dismissed by the courts if it doesn’t constitute an official legal document. This can cause headaches and a great deal of unnecessary stress for all parties involved.

What is an Informal Will?

An Informal Will is a document that is intended to act as a Will but does not comply with the set strict legal requirements. Ultimately, an Informal Will may not be considered valid before the courts when applying for a Grant of Probate. (Known as Letters of Administration with the Will annexed.)

An Informal Will can come in several forms, including:

• Electronically typed notes; This could be on a computer, tablet, or phone
• A voice recording or video recording
• A handwritten note
• A text message or email
• Instructions to a solicitor with directives to create or update a Will that was not signed or witnessed before the death

What makes a Will invalid?

A Will may be deemed invalid under several circumstances, including but not limited to:

• Not complying with the requirements of the Wills Act 1997 (Vic)
• The Will is not signed by the Willmaker
• The Will is signed without two independent or authorised witnesses present
• The signature on the Will does not match legitimate examples or is fraudulent
• The Willmaker did not have the necessary testamentary capacity. (I.e. sound mind) to write a Will (e.g. suffering from a mental illness and/or mental impairments, for example, dementia)
• The Willmaker is under duress or is influenced by a family member in the writing a new or amending a current Will
• Not revoking previous Wills

Can you prove an Informal Will?

Not all Invalid or Informal Wills are automatically dismissed by the court. The court has discretion to decide whether or not an Informal Will can be valid and be admitted to probate. Each situation is dealt with on a case-by-case basis, and the Will in question will be subject to meeting the legislative requirements of the Administration and Probate Act 1958 (Vic). Providing the Will meets all the pre-requisites, a large amount of evidence will be required to be submitted to court, to support the testamentary wishes of the Willmaker.

Inevitably, this leads to a significant increase in legal costs and delay in administrating the deceased estate. Further, it exposes the family assets to claims from extended family members or former spouses. Being granted probate is an extremely complex process and does not always end in the desired outcome. The desired outcome is finalising and distributing the estate to the desired beneficiaries.

Informal or Invalid Wills can cause significant amounts of stress to all involved, so when the time comes for you to consider making a Will, it is worth investing in a professional lawyer to ensure your final Will meets all legal requirements and is valid.

Making a valid Will with The Hrkac Group

Having a valid Will gives you peace of mind that your estate will be distributed to your intended beneficiaries. In addition, providing your loved ones with legal protection to ensure your wishes are complied with.

You want to be sure that your Will cannot be contested and that it will be considered valid in accordance with the relevant laws.

Our team of professionals can assist you with the following:

• Drafting & updating Wills (including Wills with trusts)
• Appointing a financial attorney under an enduring power of attorney
• Appointing a personal attorney under an enduring power of attorney (formerly known as guardianship)
• Appointing a medical treatment decision-maker

Learn more about Wills & Powers of Attorney here.

With careful execution of your Will and attention to your requirements, we can help protect your final wishes.

If you are ready to take that next step and take control of your future, contact our Geelong-based Legal team at The Hrkac Group today.

Make an appointment today via email or phone (03) 5224 2366.

General Advice Warning

This information has been provided as general advice. We have not considered your financial circumstances, needs, or objectives. You should consider the appropriateness of the advice. You should obtain and consider the relevant Product Disclosure Statement (PDS) and seek the assistance of an authorised financial adviser before making any decision regarding any products or strategies mentioned in this communication. Whilst all care has been taken in the preparation of this material, it is based on our understanding of current regulatory requirements and laws at the publication date. As these laws are subject to change you should talk to an authorised adviser for the most up-to-date information. No warranty is given in respect of the information provided and accordingly, neither nor its related entities, employees, or representatives accepts responsibility for any loss suffered by any person arising from reliance on this information.

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