An “informal will” may appear to be a quick and cost-effective solution for expressing your testamentary intentions. However, it’s essential to grasp why drafting your own will, often driven by factors like cost, urgency, or personal preferences, can lead to a host of problems in the eyes of the law.
What is an Informal Will?
An informal will is a document outlining your wishes but failing to meet the legal requirements under Section 7 of the Wills Act 1997 (Vic). While regulations vary among states, Victoria mandates that a will must:
- Be in writing and signed by the will maker or by another person under their direction;
- Contain a signature with the will maker’s intent to execute a will;
- Be signed in the presence of two or more witnesses simultaneously;
- Have at least two witnesses who attest and sign the will in the presence of the will maker.
While drafting your own will may seem like an easier and cheaper option, there are a number of common problems associated with informal wills.
Problems with Informal Wills
- Ambiguity
The absence of precise wording can cloud your final wishes. Even if you believe your instructions are clear, any ambiguity could force the Court to interpret your intentions, causing delays and increased costs.
Examples of situations involving unclear language in wills include:
- The will makers intention cannot be clearly identified;
- Unidentified beneficiaries;
- Lack of clarity on residuary beneficiaries;
- Inadequate disposition of all the will maker’s assets, resulting in partial intestacy; and
- Use of ambiguous and broad terms throughout the will.
- The Will is Not Executed or Witnessed Correctly
Legal requirements for execution are often unknown to those drafting their own wills. If a will is not executed correctly, the appointed executor may face significant issues, delays, and costs when attempting to admit the purported will to the Court for Probate.
While a will that does not meet formal requirements may be admitted as an ‘informal will,’ there is no assurance that the Court will recognize it as your intended last will. If not accepted, the court may request the admission of a prior will or distribute your estate according to the laws of intestacy.
- Mental Capacity and Undue Influence
Informal wills can be contested on the grounds that the will maker lacked testamentary capacity at the time of execution or was unduly influenced. In such cases, there is often insufficient evidence to prove the necessary mental capacity or absence of undue influence.
Having a lawyer prepare your will can make it easier to defend against these challenges. Lawyers often maintain detailed file notes and, when necessary, may possess documented evidence of your mental capacity from a treating physician.
- Revocation and Amendments
Occasionally, changes to your will may be necessary. While making handwritten alterations directly on your original will may seem convenient, it is not advisable, as it can lead to legal disputes and potential challenges.
Additionally, omitting a revocation clause in your will, when multiple wills exist, can result in confusion and legal disputes regarding which will takes precedence. Collaborating with an experienced lawyer when creating a new will is crucial and ensures that all essential provisions, including revocation clauses, are included to prevent ambiguity or uncertainty concerning your wishes.
How City Pacific Lawyers Can Help
To avoid creating an informal will and potentially burdening your loved ones with costly legal fees and disputes, it is best to seek guidance from an experienced wills and estates lawyer.
At City Pacific Lawyers, we offer a complimentary estate planning consultation to new clients. Our experienced lawyers will walk you through the process, taking the time to understand your unique circumstances and crafting a personalized estate plan that reflects your desires.
If you or someone you know wants more information or needs help or advice regarding estate planning, please contact us on (03) 9592 3356 or email office@citypacific.com.au or fill in the web contact form here: https://www.baysidewills.com.au/free-consultation/
