29/07/2014

As part of dividing an estate, parties involved are required to conduct rigorous searches to locate a will that a person may have left behind. Movies often show characters finding wills hidden in walls or in between books, but a recent court case has now shown that searches for wills might need to go further still, with documents on computers and even notes on an iPhone accepted as having the ability to create an informal will.  Of course, even these informal wills must meet the Court’s minimum requirements for a will in order for it to be effective, so simply making a quick note on your phone or tablet is not necessarily going to be enough.

An important part of any informal will is the intention of the will-maker to be bound by it. Conversations with other parties, preparation of new wills and death bed statements can all play a role in determining whether a document is to be considered an informal will. A recent case in the NSW Supreme Court found that a de facto who had discussed and prepared a new will for her deceased partner was entitled to receive part of his estate, even though he never actually signed the new will!

Just because your will may not be finalised does not mean however it should not be in writing. Any decisions should be documented to ensure the best chance of your estate being divided as you intended. A NSW case involving a solicitor drafting a will for an elderly woman has highlighted that even when discussing draft terms of your will, you should make some form of document to ensure that if the worst happens before you can finalise your will, your intentions are still protected. The case also noted that your solicitor has a duty to safeguard your planned distributions in the drafting process to prevent court disputes arising.

BUT BEWARE - An informal will is not enough!

It must be remembered that informal wills are just that – informal. Whether an informal will is actually effective at law must be determined by the court. You should remember that any court costs in determining if an informal will is effective will come out of the estate of the deceased, reducing the estate. In order to ensure that your estate is distributed as you intend, you should organise to prepare a formal will as soon as possible.

For further information, call Townsends Business & Corporate Lawyers on (02) 8296 6222.