Can an “informal will” be admitted to probate?

You may write up a document in a notebook and the issue will then be whether you intended your thoughts to be taken seriously as testamentary intentions.

In the 2015 case of In the Estate of the late Ronald Robert Irvine; Evans v Gibbs in the Supreme Court of New South Wales the court was required to consider a document that covered 5 pages in a red covered notebook and whether it could be regarded as an informal will.  The deceased had in fact referred to these pages as “Will of Ronald Robert Irvine” but he had not signed the pages.

The pages also contained information such as a reference to a doctor’s appointment not only the intentions of the deceased to leave his possessions to members of his family.

Was this intended as a valid will?

The court considered Section 8 of the Succession Act and specifically the following:

  • Whether the document purports to state the testamentary intentions of a deceased person, and
  • Whether the will has not been executed as required under the legislation, and
  • Whether there was any evidence of the deceased’s intentions

The court took the view that:

  • A document existed that purported to embody the deceased’s testamentary intentions.
  • The will said quite plainly “I leave” in connections with specific bequest.
  • The document gave directions as to the disposition of property (sale of assets).
  • The document appointed a specific person as executrix who would administer the estate.
  • The document provided directions for the distribution of the proceeds of the sales of assets.
  • The document was intended as a will and not just a draft of a will or an aide memoire or a document to be later given to a solicitor for engrossment as a formal will.
  • The notebook was always carried by the deceased in his bag. There were many other notebooks in his home but this particular notebook was always carried by him in his bag therefore it clearly had importance to the deceased.

How did the court explain the lack of formality of this document that was not signed as a normal will would be?

The court acknowledged that the deceased was not a lawyer or a businessman.  He trained and worked as a painter and decorator.  He was right handed from birth but had lost his right arm in a workplace accident and was only able to write with his left hand.  His handwriting was neat and with some structure.

 

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