Last Will / Informal Testamentary Document

My father recently died leaving a Will appointing me as executor and sole beneficiary. While I was cleaning out his apartment I found a note book which contained a list of names and amounts of money under the heading “Gifts When I Die”. Could this be deemed as a last Will?

This issue is becoming more and more common and can create quite a headache for executors. An informal testamentary document should at the very least be disclosed to the Court. The Court will then decide whether to dispense with the formal requirements for a valid Will.

The following example relates to NSW.

What the Court must look at is set out under section 8 of the Succession Act 2006 (NSW). This section applies to a document, or part of a document, that:

  • (a) purports to state the testamentary intentions of a deceased person, and
  • (b) has not been executed in accordance with the legislation.

The decision of Justice Brereton in the case of Wise v Callaghan [2007] NSWSC 580 (a decision under the old section 18A), is helpful in showing what the Court will look at to satisfy itself that the document was intended by the deceased’s to constitute his or her Will. Justice Brereton stated – “On an application under s18A there are essentially three questions: first, whether there is a document; secondly, whether that document purports to embody the testamentary intentions of the deceased; and thirdly, whether the Court is satisfied that the deceased has then, or subsequently, by some act or words demonstrated that it was her or his intention that the document should, without more on her or his part, operate as her or his Will…”

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