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What is needed to make an informal will?
Since changes were made to the wills legislation in 1989 – that’s 32 years ago – it has been possible for something which is a not properly made will to be treated as equivalent to a properly made will. This faux will is universally called an ‘informal will’.
It was an important reform of succession laws because it allowed a person’s true wishes about the distribution of their assets on death to be recognised as valid, although all the formalities for a legal will had not been satisfied.
However, as a general proposition, an improperly made will is not a desirable option. This is because there is uncertainty about its effectiveness until a court (after the person’s death) dispenses with the requirements. Also, obtaining the court’s dispensation involves extra legal costs and delay.
The legislative reforms mostly help those who are unfamiliar with the requirements for a valid will and those who desperately want their wishes to be known but cannot make a proper will because their circumstances do not allow it.
COVID Wills
Examples of this second situation, ie where circumstances have not allowed for the preparation of a proper will, have occurred during the COVID pandemic.
One instance involved Gordon Logan. He had made a will in 2011, so he knew the requirements for a proper will. However, in February last year, when he was 93 and living in an aged care facility, he spoke about updating his will. Shortly thereafter the COVID-19 pandemic commenced. In mid-April, he made handwritten changes to a copy of his properly made will.
The changes suggested that he knew what he was doing. He then signed each page of the document and filed it with other important documents located in a folder labelled with the name of his solicitor. The court was satisfied that the deceased intended the document to stand as his final will (Re Logan [2021] VSC 131).
Another instance involved Stan Sheehan. He attempted, with the help of his solicitors, to execute a will from his hospital bed whilst awaiting an operation to remove a brain tumour. His witnesses saw Stan sign by an audio-visual link, a relaxation on normal requirements which has been introduced in response to the COVID-19 pandemic.
However, Stan omitted to sign one of the pages of the will as well as an accompanying schedule. This would not have been required for a physically witnessed will but was required for an ‘electronically’ witnessed will.
After the operation, Stan’s health declined, and he never recovered sufficiently to re-execute the will. The court treated the incomplete electronically witnessed will as equivalent to a formally will (Re Sheehan [2021] QSC 89).
Both the Logan and Sheehan examples illustrate the benefit of the legislation.
Indefinite intention
At the other end of the spectrum are wills which have been prepared by a solicitor but never signed nor adopted by the client. That was the position in Re McNamara [2021] QSC 148. The document was prepared as a will by a solicitor, amended by that solicitor but never signed. The client kept changing the date of his appointment to sign the will.
The court considered that this pointed to the deceased not wanting the document prepared and amended by the solicitor to constitute his will.
Something similar occurred with Bradley Lyons. He had made a properly prepared will in May 2016. In about 2017 he was diagnosed with liver cancer. In late 2018 he contacted his solicitor to update his will. Thereafter, he made (but failed to keep) appointments with the solicitor in January, March and May 2019. He eventually saw the solicitor on 4 February 2020.
The solicitor prepared a draft will. That was emailed to Lyons for review in advance of a suggested meeting to sign the document. Lyons said that “We need to get the will signed”, but he died a month later without doing so.
After Lyons’ death, an application was made for the draft will to be treated as an informal will. The court identified the relevant issue as being “whether the deceased intended the draft Will to form his Will notwithstanding his awareness of the need to execute it, having an opportunity to execute it but not doing so”.
Unsurprisingly, and importantly – so that a person’s inconclusive actions are not treated as equivalent to definite decisions – the court was not so satisfied. Afterall, legislation should not be applied to turn half-hearted ruminations into wills.
