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Informal Wills

What are Informal Wills?

Informal Wills are a Will that does not conform to the formal requirements of the relevant estate law. For example, it may have been incorrectly signed or witnessed or it may be an electronic document. Whilst the Court does have the power to grant Probate for an informal Will, it can cause a lot of stress and expense for your loved ones. There is also the uncertainty as to exactly what your wishes are, and whether the Court will actually find that the informal Will is in fact your last Will.

There have been some recent cases where people have left informal Wills and it has been left to the Courts to determine whether the Will was valid. Theses cases highlight the need for people to have a properly executed will.

The Background of the Frizzo case

  • Mrs Frizzo was 81 years old and changed her Will after her husband passed away to heavily favour one of her son’s;
  • Mrs Frizzo was admitted to hospital for surgery after a fall;
  • In the days leading up to surgery she experienced days of “incoherence and delirium” however on the day of surgery, she had significantly improved;
  • Just before surgery, Mrs Frizzo asked her doctors and nursing staff to make a Will for her;
  • Her wishes were written down on a piece of paper and read back to her;
  • She stated she wanted to make the changes so that everything was fair;
  • Her “will” was then taken away with the hospital nurse and misplaced;
  • Only a copy of the will was found.

The Issues

Firstly, did Mrs Frizzo have capacity at the time of making the will? For example, was Mrs Frizzo in the right state of mind to make decisions that deal with her legal rights and make a Will? A doctor’s report is usually required for this.

Secondly, did Mrs Frizzo have the intention for the informal Will to be her last Will and testament? As Mrs Frizzo had made an earlier Will, the Court had to be satisfied that she intended for the Will made in the hospital to be her final Will and testament. It has to be more than just a thought.

The Decision

The Court ultimately decided that Mrs Frizzo did have capacity to make the Will that she intended it to form her last Will, but only after lengthy discussions over the evidence provided by the doctors. If it was not for the doctor’s evidence, there is a strong possibility the Court could have decided otherwise and the Will would have been invalid.

You should regularly review and update your Will however it should be done properly. An informal Will, in most cases, will not be granted probate and it will be left to your loved ones, or the Court, to determine your wishes. This could mean your assets are distributed against your wishes.

If you wish to change your Will you should consult an experienced solicitor. A properly executed Will allows for the simple transfer of your assets and can reduce the risk of a claim being made against your Estate. If you require assistance with amending your Will, please do not hesitate to contact me on 1800 640 509.

Chloe Kopilovic

Written by—

Chloe Kopilovic

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