Valid wills can be made in unconventional and informal ways even by video, notepad memo or even on the back of an envelope.
That said, the risks of departing from the strict requirements of a formal will are enormous and the expense to which an estate can be put to prove validity, equally huge.
Consider the case of Ken Young who died in August 2022 – at age 85 – without any known will. Ken was divorced, had no children and his closest relatives were his niece and two nephews.
After his death, niece Anthea located a notebook on his armchair in which he regularly made notes.
Three pages of his notebook contained instructions that read like a will and were headed “Consider this my will”.
The pages contained instructions for the distribution of all of his possessions and money which was all to go to Anthea. He also specifically noted – with reasons for this decision – that he did not want any benefit to go to his nephews.
To get the benefits the pages appeared to bestow upon her, Anthea needed to convince a judge that the document – which was not signed with usual formalities of a formal will – purported to state Kenneth’s testamentary intentions.
Ken had signed each of the 3 notebook pages – exactly when was unknown – but there has been no witness to his signature.
If the notepad was held not to be a valid will, Ken’s estate would pass according to the laws of intestacy in equal shares between Anthea and Ken’s nephews.
Naturally the nephews were given notice of Anthea’s application to the court but did not contest her claim the NSW Supreme Court.
Anthea was able to convince Chief Justice in Equity David Hammerschlag that the notepad was indeed an informal will because the notepad pages had been written and signed by Ken and showed he intended the notes to form his will by the use of the introductory words, “Consider this my will”.
Further, the pages gave testamentary instructions, namely to give his estate to Anthea and to exclude his nephews.
Informal notes can be declared valid, but the process of having them declared to be lawful is fraught with uncertainty. Professionally drafted wills eliminate the anxiety and cost of court applications that are necessary to determine the legitimacy of something done informally.
The Estate of Young [2024] NSWSC 569 Hammerschlag CJ in Eq, 10 May 2024 Read case