What is an informal Will?

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Introduction

In WA, if the Will of a deceased person has not been executed properly, provided that the Supreme Court is satisfied that the person intended the document to constitute their Will, the Court may allow the Will to be recognised as a valid Will under section 32(2) of the Wills Act 1970.

What will the Court consider?

The Court will need to consider from the available evidence, amongst other things:

1. whether the deceased person had testamentary capacity at the time of execution of their Will;

2. the circumstances of the preparation and execution of the Will;

3. the intentions of the testator;

4. the value of the estate;

5. any previous Wills; and

6. any persons who may be prejudiced by the recognition of the informal Will as a valid Will.

Examples of situations where a Will may be recognised as an informal Will include:

1. where a person gave instructions to a solicitor to prepare a Will but was unable to execute the Will prior to their death; and

2. where a person prepared a Will, but did not sign the Will in the presence of 2 witnesses as required by section 8 of the Wills Act 1970.

The Court has a wide discretion to admit evidence which is relevant to the informal Will and such evidence will regularly include statements made to family members about the Will.

The application of section 32 of the Wills Act 1970 to a document which may be able to be recognised as a valid Will is complex. Before an application for probate is lodged with the Supreme Court, the family or executor should obtain legal advice to ensure that the proposed probate application complies with the Non-Contentious Probate Rules 1967.

If the informal Will is unable to be recognised as a valid Will, a prior Will may be valid, however this will depend upon whether the informal Will was effective to revoke the former Will. A further legal possibility is the distribution of the deceased estate according to the laws of intestacy under the Administration Act 1903.

Depending upon the circumstances, the Court may require the legal costs of any legal proceedings concerning the informal Will to be paid out of the deceased estate.

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