A growing number of informal Wills – for instance, Wills sent by text message or left as a Word document on a computer – are being tested in Court, with significant costs for estates which could easily have been avoided, says Anna Hacker, Wills & Estates Accredited Specialist at Australian Unity Trustees.
“We are seeing more and more cases of informal Wills before the courts, perhaps because people are more likely to have a phone or laptop with them at all times and it seems an easy option to just type up a few notes or a text, and assume that the job is done.
“Ultimately this is a very expensive way of writing a Will. Any such document needs to be analysed and tested by the Court, and this will always cost a lot more than having a Will drawn up properly.”
Ms Hacker says there are two main categories of informal Wills – a DIY Will kit that hasn’t been filled out correctly, and basic informal documents (such as text messages or typewritten documents) that attempt to direct assets.
“In both cases, a court hearing is required to determine whether the document should be accepted as a person’s last Will and Testament.
“The Court considers a number of factors in considering whether the willmaker intended for the document to be a Will.
“This looks at issues such as whether the person had testamentary capacity when they wrote the document, whether they intended that document to be their Will, and whether it fulfils at least some of the requirements of a Will such as being a document, for instance whether the person signed it and whether it is dated.
“Another area that the Court looks as is whether the person had previously drawn up a Will, which would suggest that they knew the proper process and what was required.”
Ms Hacker said there have been a couple of examples recently where informal Wills have been found by the Court to be valid Wills.
“In one case someone wrote a document on his computer, just prior to taking his life. The judge ruled that it was valid, and a grant of representation was then given.
“However it was a very expensive process and it would have been much more cost-effective to get a Will properly drawn up and witnessed, rather than type instructions up on the computer and hope for the best,” Ms Hacker says.
Another issue is that when an informal Will is tested in the courts, it usually means that a great deal of personal information needs to be shared.
“It can be very unpleasant for people to have to air their dirty laundry in Court – and it’s not just in the courtroom,” Ms Hacker says.
“The judgment of the case is usually reported and the details are released, whether in the media or for the benefit of other lawyers, which means personal details can become public information.
“In another recent case, a man typed (but didn’t send) a text message just before committing suicide, stating he wanted to leave all his assets to his nephew and brother.
“His widow argued that because he didn’t send the text, it shouldn’t be accepted as his Will, and that she was the beneficiary of the estate. The Court was required to hear information from witnesses about the state of the marriage, the relationship between the two people, as well as details on other personal and intimate relationships both past and present.
“Furthermore, while the Court found that the unsent text message was a valid Will, it also ruled that the cost of the court case should come out of the estate. As a result, there was very little left for the brother and nephew, which is clearly not what the deceased would have wanted.
“To feel confident that the estate will go to the chosen beneficiaries , as intact as possible, the best approach is to have a proper Will drawn up,” Ms Hacker says.
Australian Unity Trustees was established in 2017 to provide a range of trustee services to all Australians including: estate planning; executor appointments and estate administration; financial attorney; financial and legal administration; and the establishment and management of personal, native title, community and charitable trusts. It is the first traditional trustee financial services licence issued since the establishment of a national licensing framework for traditional trustee activities.