Practical Tips for Dealing With Informal Wills
When a loved one dies, handling their estate can be challenging, especially if they didn’t leave a formal will. In some cases, you might come across an informal will—a document that expresses their wishes but doesn’t meet the usual legal standards. Informal wills can take many forms, such as a handwritten note, an unsent text message, or even a file on their computer.
While informal wills can still be valid in Queensland under Section 18 of the Succession Act 1981, there are several important things to consider before moving forward. This article offers practical tips for dealing with informal wills and navigating the legal process.
What Is an Informal Will?
An informal will is a document that shows what someone wanted to happen to their property after they die, but it doesn’t meet the legal requirements for a formal will. For instance, it might not be properly signed or witnessed, or it could be in an unconventional format, like a digital file. However, the court can still accept informal wills if it can be proven that the person intended the document to act as their final will.
So, what do you do if you think there’s an informal will to consider? Here are some practical tips.
- Search Thoroughly for Any Potential Documents
When dealing with an informal will, the first step is to carefully search through the deceased person’s belongings. This includes their physical papers as well as their electronic devices, like computers, smartphones, and tablets. The will could be a handwritten letter or a note saved in a phone app.
Family members, close friends, or trusted advisers (such as accountants or solicitors) may also know where the person kept important documents or what their final wishes were.
- Understand What Might Qualify as an Informal Will
Informal wills can come in many forms, and understanding what qualifies is crucial. Courts have accepted a wide range of informal wills, including:
- Handwritten notes: The deceased may have jotted down their final wishes without following the legal steps of signing and witnessing.
- Electronic messages: Emails, text messages, or even documents saved in cloud storage have been recognised as informal wills.
- Unusual materials: In some cases, wills written on unconventional surfaces, such as a wall or even a piece of fabric, have been considered valid.
The key is whether the document clearly expresses the person’s testamentary intentions—what they wanted to happen to their belongings after their death.
- Gather Evidence of the Deceased’s Intentions
For the court to accept an informal will, it must be shown that the deceased intended the document to be their final will. Evidence that supports this intention can come from various sources:
- Conversations: Did the deceased discuss the document with others and say they intended it to be their will? Testimony from family members or close friends could help prove this.
- Written statements: Notes or instructions found alongside the informal will could show that the person meant for it to be their official will.
- Behaviour: Did the deceased make any other arrangements, like appointing an executor or talking about the distribution of their estate, that align with the informal will?
The more evidence you can gather, the stronger your case will be when applying to the court.
- Consult A Lawyer
Navigating the legal process for validating an informal will can be complex. It’s always a good idea to seek advice from a solicitor who specialises in wills and estates. They can guide you through the process of applying to the Supreme Court of Queensland to validate the informal will and ensure that all necessary evidence is submitted.
Solicitors can also help assess whether the document is likely to be accepted by the court and prepare the necessary affidavits and legal paperwork.
- Consider Testamentary Capacity
One critical aspect of any will, formal or informal, is testamentary capacity—whether the person was of sound mind when they created the document. If there are any doubts about the deceased’s mental state, the court may require evidence to prove that they understood what they were doing at the time. This could involve obtaining medical records or testimony from people who interacted with the deceased in their final days.
- Be Prepared for Potential Disputes
Informal wills can lead to disputes, especially if the contents of the document are unexpected or if certain family members feel left out. Be prepared for challenges to the validity of the will or disagreements about what the deceased intended. Having solid evidence and legal support can help resolve these issues more smoothly.
Dealing with an informal will requires careful thought and planning. Consulting a lawyer can help you navigate the complexities of the process and improve the chances that the court will accept the informal will. By taking these practical steps, you can help ensure that the estate is distributed according to the deceased’s wishes, even if they didn’t leave behind a formal will.
Frequently Asked Questions (FAQ)
Is an informal will valid in Queensland?
Yes, an informal will can be valid under Section 18 of the Succession Act 1981 (Qld) if the Supreme Court is satisfied that the document was intended to be the deceased’s final will.
Do I need a wills lawyer to deal with an informal will?
It is strongly recommended. A wills lawyer can help gather evidence, prepare court documents and improve the chances of the informal will being accepted.
Can a text message be considered a will?
In some cases, yes. Courts have accepted unsent text messages and digital notes as informal wills, but only when there is strong evidence of intention.
What happens if there is no valid will?
If no valid will exists, the estate is distributed according to Queensland intestacy laws, which follow a set list of relatives who inherit in order of priority.
How can I avoid informal will problems in the future?
The best protection is to prepare a formal will with a qualified wills and estate planning solicitor. This reduces uncertainty and the risk of disputes.
