Why should you have a will? Without a will, you will be deemed to be intestate when you die or, in some cases, a document that does not meet the formal requirements of a will may be deemed to be your will by the Court.

Section 8 of the Succession Act 2006 (NSW) allows the Court to dispense with the requirements for execution, alteration or revocation of wills in certain crcumstances.

What sort of document or object might be accepted as an informal will?

In a time when technology is ever-evolving, the courts are adapting. The definition of "document" is no longer restricted to something written. It now encompasses:

• anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

• anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

• a map, plan, drawing or photograph.

So, what’s the danger if you don't have a formal will but have left a document purporting to be a will?

Upon your death, an application will have to be made to the court, asking the court to decide whether the document (or object) in question is a will. If there are competing views between family members, this can complicate the matter more and become a financial burden on them and your estate.

What does the court consider?

• the document being put forward as the "will";

• any evidence relating to the manner in which the document or object was executed; and

• any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased .

What types of documents count?

A DVD

A DVD recording made by the deceased 2 days after she had signed her will?  In the matter of Re Estate of Wai Fun CHAN, Deceased [2015] NSWSC 1107, the Supreme Court treated a DVD recording of the deceased making an amendment to her will as a codicil to her will. Why? - you may ask. The deceased felt she needed to make some changes to her will and had time limitations.     

A text message

The Supreme Court of Queensland found that not only could a text message be deemed a will, but an unsent text message could be deemed a will (Re Nichol; Nichol v Nichol & Anor [2017] QSC 220).

In this case, the deceased had left his mobile phone on a work bench in the shed where his body was found. The text message indicated what was to be done with his assets and his remains. It provided the pin number for his ATM card and ended with the deceased's initials, his date of birth, the date the text message was written and the words "My will".

A suicide note

As macabre as it may seem, there have been instances where the court has been asked to admit part of a suicide note as a will. This arises in circumstances where the deceased took the time to write a note and included in that note details of what should happen with their assets and estate.

In the matter of MacDonald v MacDonald [2012] NSWSC 1376, the deceased left a suicide note which included a section under the heading "Instructions for distribution of my goods". It indicated that the deceased's mother was his beneficiary and included a request to his wife that she not dispute his estate. The Supreme Court admitted this part of the suicide note as the deceased's will.

The fender from a tractor

In Saskatchewan, back in the 1940's, a farmer died following an accident at his wheat farm. He was trapped under his tractor. During the time he was trapped, he scratched out a message on the fender of the tractor which read "In case I die in this mess I leave all to my wife. Cecil Geo. Harris." The fender was removed from the tractor and determined by the courts to be a valid will. Where is the fender now? At the University of Saskatchewan, of course!

What does this all mean?

If you don't want your loved ones having to approach the court with a DVD, your computer, your phone or even the fender from your tractor, contact us about formalising your wishes so that there is clarity and certainty regarding your estate and your intentions.

If your loved one has died without a formal will, but left something recording their intentions, we can help you to ensure your loved one's wishes are carried out.

If you would like more information please contact Snezana Vojvodic or Cherrie Homer.

For further articles on estate disputes, please see:

1. statutory wills;

2. family provision claims;

3. lack of capacity at the time the will was made; or

4. undue influence on the testator at the time the will was made.

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.

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