What if they dont sign the Will?

Estate Planning - Havilah Legal

What if they dont sign the Will?

When a loved one dies, everyone goes through a period of incredible grief and sadness. The last
thing you want to be concerned with is dealing with your loved ones estate, especially if, low and
behold, you find out that they never signed their Will.
For a Will to be valid, it has to meet certain strict legal requirements. This is why we so often
recommend to everyone to have their Will drafted by a lawyer.
One of these requirements is that the Will must be signed by the testator, and this signature has
to be witnessed by two witnesses who are over the age of 18 years old.Please note that there are a
number of formalities which must be met in order to draft a formal Will, with a valid signature
being just one of them.
If a testator did not sign their Will, then this document could be an Informal Will.

Informal Wills
Informal Wills can be accepted by the Probate Division of the Supreme Court of WA if certain
elements are established.
In order to establish that the Will was intended to be the testators last Will and Testament, the
executor appointed under this document must provide evidence that it was the testators
intentions to distribute their estate as outlined in the document.
Further, the court must be satisfied that the testator saw the document purporting to be Will and
that the testator additionally accepted this document as their last Will and Testament.

Recent Case Law

An informal Will has been accepted by the Probate Division in the recent decision of Re the Estate of Allan
John Young [2015] WASC 409.

The deceased in this matter made a properly executed will on 26 March 1970, distributing his estate to his
parents upon his death, and in the event that his parents pre-deceased him, his estate was to be
distributed amongst his three siblings.

In 2011 the deceased told his accountant that he wished to prepare a new Will and that he wanted to pass
all of his assets (save for a particular bequest) directly to his siblings and their children.

The deceased prepared a schedule (the 2011 Schedule) setting out how he wished for his estate to be
distributed and saw a solicitor to draft the new Will. The deceased sought advice from his accountant
regarding the advice from his solicitor and the accountant advised the deceased that the advice was
inadequate.

Recent Case Law

Re the Estate of Allan John Young [2015] WASC 409 cont:

No Will was prepared.

In June 2013, the deceased again discussed the issue of preparing a Will with his accountant and
forwarded yet another updated schedule of distribution to his accountant (the 2013 Schedule). This
schedule was identical to the previous schedule, save for the amount of the bequest.

The deceaseds accountant completed a document entitled Details for Will and faxed this document to
a new solicitor acting for the deceased.

After some further correspondence a draft Will was prepared in 2014. A copy of the draft Will was
forwarded to the deceased shortly afterwards.

Recent Case Law

Re the Estate of Allan John Young [2015] WASC 409 cont:

The deceased telephoned his accountant and said words to the effect of I have read the Will and I am
happy with the Will as long as you are.

The deceased then passed away unexpectedly.

The deceased also told his neighbour about his Will. His neighbour gave evidence that the deceased
would have signed the Will but for his unexpected death.

The court reiterated in this matter that the document purporting to embody the testamentary intentions
of a deceased person can constitute a Will even though it has not been executed in the manner required,
if the court is satisfied that the deceased intended the document to constitute his or her last Will.

Decision
The court was satisfied that although it was not executed, the Will prepared by the solicitor and sent to the
deceased embodied the deceaseds testamentary intentions.
The court was also satisfied that the deceased intended to execute the Will prepared by the solicitors and would
have done so but for his supervening ill health and untimely death.
The Will was accepted as an Informal Will because:
1. The deceased has settled on his testamentary intentions in the 2011 schedule and he had not substantially
changed these intentions in the 2013 schedule;
2. The deceased instructed his solicitor to draft the Will in accordance with these testamentary intentions;
3. The deceased advised his accountant that he had seen the Will and that he was happy with the draft; and
4. The deceased was unequivocal about his intentions to sign the Will whilst discussing it with his
neighbour.

Further Case Law

It is important to keep in mind that the evidence necessary to prove an Informal Will may not be readily
available and evidentiary obstacles are common in relation to informal Will matters.
In the recent Queensland Court of Appeal Case, Lindsay v McGrath [2015] QCA 206, the court highlighted
evidentiary difficulties that can arise in Informal Will cases.

The court held that, great care is to be taken in the evaluation of the relevant evidence. To satisfy the onus, the
evidence must show more than that the particular document sets out the deceaseds testamentary intentions or
that it is consistent with other statements the deceased made about what he or she wanted to happen to the
property upon death. The evidence must establish on the balance of probabilities that the deceased wanted the
particular document to be his or her final Will, and did not want to make any changes to that document.

Find Out More

As a boutique practice, with offices in both Perth and Brisbane, Havilah Legals size affords them
the opportunity to provide you with the best legal advice and representation, whilst maintaining
flexibility and a commitment to delivering outstanding levels of personal attention and
understanding.
Effective estate and succession planning is a complex process that raises many emotional,
financial, tax, equity and legal issues. Speak to the leading estate planning lawyers Perth has to
offer at Havilah Legal.