When Will the Court Recognise Informal Notes as a Valid Will?
Informal Wills and Testamentary Intentions: In Re Prien [2019] VSC 47
The Victorian Supreme Court decision in In Re Prien [2019] VSC 47 examined whether an informal codicil – consisting of two pages of handwritten attendance notes by a solicitor -could qualify as a valid testamentary document.
Background
The solicitor had visited the client, Suzanne Roslyn Prien, at her home. During the meeting, the solicitor took handwritten notes based on the client’s instructions and referred to clauses in a will previously executed by Ms Prien.
Although Ms Prien was unwell and on medication at the time, she remained alert and capable of giving instructions.
What the Notes Showed
The notes taken by the solicitor demonstrated the following:
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The client had signed the two pages of notes.
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The solicitor had initialled each page.
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At the foot of the notes appeared the statement:
“These notes form confirmation of my testamentary intentions – Suzanne Roslyn Prien, 15/02/2016.”
The key question before the Court was whether Ms Prien intended these notes to represent her final testamentary intentions.
Legal Issue: Testamentary Intention
Although the legislation governing informal wills in Victoria differs from that in New South Wales, the case highlights an important principle – each case turns on its own facts and evidence of intention.
For a document to be recognised as a will (or codicil), the Court must be satisfied that:
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The document was intended by the deceased to be their final will or alteration to an existing will.
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It was not merely a draft, memorandum, or set of instructions.
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The deceased knew and approved of its contents without reservation.
It is not enough that the document simply reflects testamentary intentions or is consistent with prior statements by the deceased.
The Court’s Decision
Justice McMillan carefully considered all the evidence, including the circumstances in which the notes were created and signed.
The Court found that while Ms Prien had testamentary capacity and had signed the document, she did not intend the notes to operate as her final will or codicil. She had not demonstrated an intention that the notes should have binding legal effect, nor had she shown knowledge or approval of their full contents.
Accordingly, the document did not qualify as a valid testamentary document under Victorian succession law.
Key Takeaway
In Re Prien serves as an important reminder that intention is critical in determining the validity of informal wills. Even where a document reflects testamentary wishes and is signed by the testator, the Court must be satisfied that the person intended it to serve as their final expression of those wishes.
For anyone preparing or updating a will, formal execution in accordance with the Wills Act 1997 (Vic) is the safest way to ensure that your testamentary intentions are upheld.
