This matter involves an application seeking probate of an informal will, which was granted by the Court. The deceased died leaving a will dated 26 July 2011, and a copy of that will which had been amended and signed by the deceased by hand. The copy containing the handwritten notations was signed, but not witnessed. In that respect, it was an ‘informal will’.
The amendments included changing the title to “my updated will as from 17 April 2020”, amending the will to reflect the sale of his home, removing deceased persons as beneficiaries, and including his great niece, who was born after his will had been drawn up.
Relevantly, the deceased amended his will by hand during the COVID-19 lockdown measures when he was 93 years old and living in an aged care facility. The Court considered that as a result of the lockdown measures, the deceased was not able to see or consult with his solicitors to formally effect the amendments he sought to make to his will, nor would he have been able to comply with the usual requirements for witnesses and an assessment of his testamentary capacity due to social distancing requirements at the time.
The court considered whether the deceased had:
- intended that, by making those amendments, the document would be his will and that it would have effect upon his death (rather than being a provisional, preliminary or tentative proposal1); and
- capacity to make the will, knew and approved of the contents, and was not pressured or coerced into making the will.2
Ultimately, the Court was satisfied that the deceased had the requisite testamentary intentions and capacity for reasons which included the following:
- the title change indicated that this was intended to be an updated will;
- the amendments logically reflected changes to his assets and surviving beneficiaries;
- the amended will was stored together with other formal documents; and
- the fact that the death certificate did not refer to any issues suggesting a lack of testamentary capacity and the available medical evidence from the deceased’s treating physician suggested that the deceased had capacity.
This article was written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Matthew Deetlefs, Law Graduate..
1Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Rowe v Storer [2013] VSC 385, [32] (McMillan J).
2Re Stuckey [2014] VSC 221, [40]-[41] (McMillan J); Jageurs v Downing [2015] VSC 432, [19] (McMillan J).
