Probate Perth WA

What is the legal test to be applied to validate an informal Will?


The case of Re Estate of Kent (Dec); Ex parte Bonker [2017] WASC 239 delivered on 18 August 2017 considered section 32 of the Wills Act 1970.

There are three key questions concerning informal Wills:

1. was there a document?

2. did the document purport to embody the testamentary wishes of the deceased?

3. did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate the intention that the document should, without more on his or her part, operate as his or her will?

It is not the correct question to ask whether he deceased intended the document to constitute the deceased's last will?: [7] per Registrar C Boyle

The application was refused in this case for a number of reasons:

1. there were too many intermediaries between the will maker and the solicitor taking instructions. At various times, persons were present who should not have been. Without suggesting inappropriate pressure, it does necessarily reduce the court's capacity to be sure that what is expressed in the informal will was in fact the settled intentions of the deceased.

2. he deceased used a series of increasingly slender excuses not to execute her will. The ultimate failure to sign her will suggests that Mrs Kent was not settled in her intentions.

3. The affidavits of each of the applicant and the solicitor express opinions that the deceased had settled on her testamentary intentions, but those expressions were clearly inadmissible on ordinary principles.

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