In an ideal world, every adult would have an ‘estate plan’ in place including an up-to-date Will, and a ‘suite’ of other documents dealing with their wishes on death and incapacity such as an Enduring Power of Attorney. Of course, with the busyness that takes over our lives sometimes, it is no surprise that more than half of Australian adults do not have a current Will in place.
Often, people who don’t have a ‘formal’ Will may have made some other type of document that doesn’t meet the ‘formal’ requirements of a Will (by being in writing, signed in the presence of two adult witnesses etc) but which still expresses their wishes for their estate on their death (otherwise known as “testamentary intention”).
In Queensland, section 18 of the Succession Act 1981 (Qld) recognises that informal documents made with “testamentary intention” might still be considered a Will (otherwise known as an ‘informal Will’) provided that the deceased intended that document to operate as their Will (without anything further needing to be done).
Some examples of recent informal wills accepted by the court include:
- An unsigned electronic documents found on a computer;
- A note on an iPad;
- An unsent text found on a phone near a man who took his own life; and
- A tape or video recording last wishes.
Other informal documents (such as lists of household items or jewellery) might also be taken into account. Even sticky notes attached to an item naming a beneficiary may be considered as a “document made with testamentary intention”!
So, what happens if there is an informal Will?
You can apply to the Court for Probate of an informal Will – these applications are considered by a Judge and are far more complex (and expensive) than an application for Probate of a formal Will, but it is possible!
In any case, the recognition of “testamentary intention” in Queensland means that it is necessary to search quite broadly to see if any informal document might exist.
At Resolve Estate Law we are expert estate lawyers highly experienced in section 18 applications to court for approval of informal Wills. We also provide touch point estate administration advice for simple matters through to full estate administration services for more complex estate administrations. If you need help navigating next steps please contact us by phone or email, or click here to arrange your complimentary 15 minute call.
