16 April 2019

Editorial from GMRF Discovery Partner Thynne + Macartney Lawyers

Historically for a will to be valid it must meet strict formal requirements, including that it be in writing, signed by a testator who in turn signs in the presence of two
witnesses.

However, over a decade ago, legislative amendments meant that documents that didn’t meet these formal requirements could, with the assistance of the Court,
become a valid will.

These changes have seen the following “documents” admitted to probate:

  • hospital menu (with notes about a will on the back);
  • writing on a wall;
  • notes on an iPhone;
  • an unsent text message;
  • video will; and
  • files saved on a computer.

A more conventional example arises where a person has a will drafted by a solicitor, approves that draft but passes away or loses capacity before that will can actually be signed. Sadly, many informal wills are actually a part of a
suicide note.

However, provided that there is a document, even an electronic one, which contains testamentary gifts (that is, gifts designed to take effect upon the death of the person) and which the person intends to be their will, the document could, with the assistance of the court, become a valid will.

However, because the document does not meet the formal requirements, the process of dealing with an informal will is far more expensive, time consuming and requires a hearing in the Supreme Court, before probate can be granted.
And, because many informal documents are not written by lawyers, they are often incomplete and contain inconsistencies and ambiguities. This often leads to further court proceedings to clarify how the estate should actually be dealt with.

Although it might be tempting to draft your own will, for the sake of time, money and simplicity, this is often a false economy. The costs of dealing with an informal, or even unclear, will could run into tens of thousands of dollars.

However, for a modest fee, a succession lawyer can draft a will that will meet the formal requirements and will give effect to your wishes.

If you have any questions, please contact one of the members of the Wills and Estates Team at Thynne & Macartney Lawyers.

If you would like to have an obligation-free chat about leaving a gift to GMRF in your Will, please contact Sharon Wood on 07 3394 7508 or woodsharon@ramsayhealth.com.au

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