- The admission of an informal Will: According to section 9 of the Wills Act 1997 (Vic) (Act), an informal Will can be admitted to probate if:
- there is a ‘document’;
- the document records the testamentary intentions of the deceased; and
- the document was intended by the deceased to be their Will.
- The facts and circumstances of the case in question are to be closely examined in order for the Court to make a determination.
- Testamentary Capacity: The testator’s understanding and comprehension of the document and the presence of their natural faculties, free of delusion or disorder, are important to consider. Evidence from a medical practitioner provides strong support.
- Testamentary Intention: The proposed document’s wording, information, rational appointment of executors, and disposition of assets are all important to determine a testator’s intention. Depositions in relation to the deceased’s testamentary intention are considered by the Court. Having a preceding formal Will detracts from the testator’s intention.
- Revocation of Preceding Will: Section 9(2) of the Act is used as a source of power for the Court to refuse to admit a Will to probate where it has been informally revoked by the testator.
Ms Jean Gray (Deceased) died in 2022. The Deceased left behind a valid Will dated 5 June 1995 (1995 Will).
The children of the Deceased (Plaintiffs) brought an application for probate of a purported Will signed by the Deceased on 6 May 2019 (2019 Document). The 2019 Document did not comply with the formal requirements for the execution of a Will because it was not made or acknowledged by the Deceased in the presence of two or more witnesses as required by section 7(1)(c) of the Act.
The 1995 Will appointed the Deceased’s husband as executor. However, the husband passed in 2008, and the 1995 Will appointed the Plaintiffs as substitute executors. The 2019 Document appointed the Plaintiffs as the executors of the 2019 Document.
The Deceased’s assets principally included three properties.
The admission of an informal Will: The Court considered whether a document can be admitted to probate despite not meeting the formal requirements of a Will as under section 7 of the Act.
Testamentary Capacity: The Court considered whether the Deceased had testamentary capacity at the time she executed the 2019 Document.
Testamentary Intention: The Court considered whether the Deceased intended for the 2019 Document to be her Will.
Revocation of Preceding Will: The Court considered whether the writing of a purported Will after a previous Will had been written, revokes the previous Will.
The Court held that the 2019 Document should be admitted to probate as the Will of the Deceased.
The admission of an informal Will
Justice McDonald referred to section 9 of the Act and applied the findings of Beach and Nial JJA and Kennedy AJA in Sultanova v Bolgarow  VSCA 245, , and summarised three preconditions for an informal Will to be admitted to probate. These preconditions include that:
- there is a ‘document’;
- the document expresses or records the testamentary wishes of the deceased; and
- the document was intended by the deceased to be their Will.
The Court found that the first two preconditions had been met by the 2019 Document because the:
- 2019 Document was found in the Deceased’s home;
- Plaintiffs had deposed to their belief that the Document is in their mother’s handwriting; and
- 2019 Document contained dispositive clauses regarding the Deceased’s estate.
To determine whether the third precondition was met by the 2019 Document, the Court relied on McMillan J’s findings in Re White; Montgomery v Taylor  VSC 16, , which said:
- ‘The third requirement is that the deceased intended “that particular document to be his or her final will and did not want to make changes to it”‘.
- In reference to Whelan J’s findings in Equity Trustees Ltd v Levin  VSC 203, the Court found that the particular document could not be a document ‘intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a “trial run”‘.
- The relevant intention must be possessed ‘either, at the time of the subject document being brought into being, or, at some later time’.
- ‘Satisfying the third requirement depends upon the facts and circumstances of each case [where] the Court may consider evidence regarding the making of the Will, as well as direct evidence of testamentary intent’.
- ‘The greater departure from compliance with the requirements of section 7 of the Act, the more difficult it will be for the court to be satisfied’ that the document was intended to be the Will.
To assess the testamentary capacity of the testator, the Court refers to the principles stated in Banks v Goodfellow which states that the testator ‘shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.‘1
The Court referred to evidence from the Deceased’s medical practitioner attesting to the testator’s cognitive decline.
The Court further considered the complexity of both the document’s content and the estate being disposed of, as well as the exclusion or non-exclusion of persons who would naturally have a claim upon an estate.
The Court held that the Deceased had testamentary capacity as the 2019 Document was rational on its face, and the medical practitioner attested that the Deceased did not face cognitive decline at the time of making the 2019 Document.
The Court considered the following factors to determine that the 2019 Document was intended to be the Deceased’s Will.
- title includes ‘LAST WILL’;
- contains the Deceased’s address, is signed by the Deceased, and is dated at both the beginning and end of the document;
- appoints the Deceased’s son and daughter as executors of the Will;
- uses formal legal language; and
- appears to deal with all of the Deceased’s assets.
One of the Plaintiffs also deposed to a conversation that she had had with the Deceased which outlined the wishes of the Deceased regarding the distribution of her assets in her Will. This conversation was consistent with the 2019 Document.
The circumstances in which the 2019 Document was discovered also supported a finding that it was intended to be the Deceased’s Will. Copies of it were found in two envelopes left in a discoverable location from the Deceased to the Plaintiffs, and the original was found in a drawer in the Deceased’s home.
Circumstances that detracted from the conclusion that the 2019 Document was intended to be the Deceased’s Will were that:
- the Deceased had an existing Will, which supported the inference that she knew about the formalities for a valid Will. However, the 1995 Will was prepared and executed by a solicitor. Therefore, the Deceased may not have had personal knowledge of the requirements; and
- the Document was handwritten and there was a blank page stapled to the back of the Document, which supported the inference that it might be a draft.
Revocation of the preceding Will
Justice McDonald referred to section 9(2) of the Act as a source of power for the Court to refuse to admit a Will to probate where the testator has informally revoked the Will.
The Court found that the Deceased intended for the 2019 Document to be her Will as the disposition of assets under the 2019 Document was inconsistent with the terms of the 1995 Will.
An informal Will can be admitted to probate if there is a document, the document records the testamentary intentions of the deceased, and if the document was intended by the deceased to be their Will.
A testator’s capacity is comprehended from the presence of their natural faculties and elements of delusion or disorder.
A testator’s intention can be deduced from depositions to the testator’s intention, the existence of a previous Will, the document’s wording, information, rational appointment of executors, and disposition of assets.
The Court can refuse to admit a Will to probate if it has been informally revoked by the testator.
This article was written by Simon Crawford, Partner and Bhavna Gupta, Law Graduate.
1Re White; Montgomery v Taylor  VSC 16, .