The formality requirements for Wills vary substantially from country to country. In Germany, for example, Wills are usually prepared by a notary public, or handwritten and signed by the testator only. In contrast, to be valid in Victoria, a Will must comply with the formality requirements set out in section 7 Wills Act 1997 (VIC) which require the Will to be in writing and the signature of the testator to be ‘made or acknowledged by the testator in the presence of two or more witnesses at the same time’.
A Will that falls short of these requirements, may still be admitted to probate provided it satisfies the criteria set out in section 9 Wills Act 1997 (VIC) which are: the court must be satisfied on the balance of probabilities that there is:
- a document,
- the document expresses or records the testamentary intentions of the deceased; and
- the document must have been intended by the deceased to be his or her Will.
It does not come as a surprise that the third point is the most difficult to prove.
There have been a number of recent cases which provide guidance in relation to whether an informal document is likely to satisfy the section 9 criteria. For example, in Re Kelsall the court held that for an informal Will to be admitted to probate, it must embody the settled testamentary intentions of the deceased and not just be ‘work in progress’.
In this case, the court did not accept that a handwritten codicil contained the deceased’s settled intention. While the deceased had contacted his lawyer numerous times to discuss potential changes to his will, he did not see him for 11 months after the creation of the informal codicil. All of the deceased’s prior Wills had been prepared by his lawyer and the deceased was well aware of the formality requirements.
Similarly, in Re Hancock; Rennie v The Whippet Association of Victoria Inc, in which Aitken Partners acted for the successful defendant, the court was not satisfied that the deceased intended a signed pro-forma Will instructions sheet to be his final Will. The instruction sheet was filled in poorly and differed from the deceased’s own handwritten notes which he had provided to his lawyer. The ‘draft Will’ that was subsequently sent to the deceased for approval was different again. The court held that the evidence established that the instructions sheet did not record the deceased’s complete testamentary intentions.
The lesson to be learned from these cases is that solicitors who provide advice in relation to informal Wills, should be aware of the high evidentiary requirements and the potential cost consequences of an unsuccessful application. While it is reasonable for executors to make inquiries into and investigate the nature of an informal testamentary document and should do so, there is no duty to bring an application for an informal Will to be admitted as a testamentary document.