What constitutes an informal will

The question for a court is to determine what documents will constitute an informal will to be admitted for the purpose of obtaining Probate.

In the case of The Late Rae Mackay in the Supreme Court of the Northern Territory the judge was required to consider whether informal documents could be considered together as an informal will.  The informal documents consisted of the following:

  • a printed form with handwritten notes and described as a draft will which contained optional clauses available to the deceased to complete (some having been ticked) which can be described as “the first document”
  • a single handwritten page to be added to the first document
  • a single page with the address of the daughter (beneficiary)
  • a handwritten document which appeared to be the last will and testament (incomplete containing no bequests and unsigned)

What did the court determine?

The court was required to first consider:

  • if there was a document or part of a document in existence
  • did this constitute the intentions of the deceased
  • was the document executed in accordance with the legislation
  • did the deceased intend this documentation to embody her intentions as a will
  • did the deceased do anything further to signify this intention
  • was the documentation merely a draft of a will and not the final version to be acted upon
  • was the deceased aware of the formalities required to constitute a valid will

Each case must depend on its own individual facts.  In this situation the court decided that all the informal documents really only constituted a draft will at best.  The deceased would have known of the formal requirements to constitute a will as she was a solicitor and practiced in the area of wills and estates.

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