A relative dies leaving a signed will. In the course of their duties, executors discover the deceased kept a safety deposit box at their bank. Inside the safety deposit box is a letter written and signed by the deceased, but unwitnessed, which reveals there is a significant amount of cash buried in the backyard of the deceased's former home, the exact location of the buried cash and directions as to how it should be distributed upon their death. The letter postdates the formal will and is inconsistent with it (insofar as the will did not deal with buried cash).
As an executor or beneficiary what do you do?
These were the facts in an interesting case recently decided in the Victorian Supreme Court.1 McMillan J's concise decision provides a useful summary of the principles governing the admission of an informal will to probate under s 9 of the Wills Act 1997 (the Act).
In Victoria, for a will to be valid, it must be witnessed by two people.2
However, pursuant to s 9 of the Act, the Supreme Court may allow a person's estate to be administered in accordance with a document that does not comply with these formalities (an Informal Will).
Three criteria must be satisfied before a document will be accepted by the Court as an Informal Will:3
- there must be a document;
- the document must record the testamentary intentions of the deceased;
- the deceased must have intended the document to be his or her will.
In addition, the person seeking to have the estate administered in accordance with the Informal Will must satisfy the Court (on the balance of probabilities) that at the time the Informal Will was made the deceased had the requisite testamentary capacity (i.e. was of sound mind, memory & understanding) and had not been pressured or coerced into making it.4
Application of the law to the facts
Her Honour relied on the following matters in holding that the Informal Will should be construed as a 'codicil' (a legal term for a document that is used to amend a pre-existing will) and the estate administered in accordance with the directions in it:
- The Informal Will referred to one of the deceased assets (the buried cash) and made express directions how that asset was to be dealt with upon her death.
- The Informal Will specified that the intended beneficiary of the buried cash was to use some of that money to pay for funeral expenses, including the erection of a gravestone.
- The deceased took some care in preparing the Informal Will by storing it in safe custody with her bank, together with other valuable documents like the title deed for her house. This suggested she regarded the Informal Will as "important and worthy of protection".
- The Informal Will was dated and signed only one day after the formal will was signed. That the two documents were created so close together suggested that the preparation of the Informal Will was part of the deceased's "course of action" to outline her testamentary disposition.
- No evidence was able to be produced as to the deceased's testamentary capacity at the time the will and the Informal Will were executed. The deceased was 88 years old when she died, and the Informal Will was dated some 12 years before her death. Evidence obtained from the deceased's medical practitioner's shortly before her death did not reveal any evidence of cognitive defects or any issues with capacity.
- The buried cash was not discovered until State Trustees accessed the safety deposit box and followed the directions to locate it. For this reason it was likely that no one other than the deceased knew of its existence. Accordingly, Her Honour found that it was unlikely that the Informal Will was procured by Undue Influence.
The executors costs of the application were ordered to be paid from the estate.
The Takeaway Message
It is common, particularly as someone reflects on their life in their last weeks and days, for a person to change their mind regarding the distribution of their assets upon their death and document their new intentions in an informal way (whether or not they intend to have a new will or codicil formally prepared). Recent cases have included informal wills typed on a deceased's computer5 and an informal will contained in a text message6.
In a perfect world any changes to a person's will should be properly documented and witnessed in accordance with the requirements of the Act. This, however, is not always possible and often presents challenges for both executors and loved ones following a person's death.
If you are an executor or a beneficiary and discover a document that you believe may be an informal will you should seek legal advice immediately to ensure that the deceased's wishes are honoured and that disputes and the cost and stress associated with them are kept to a minimum.
Pointon Partners' Disputes Team is well placed to provide this advice and act in any subsequent proceeding.
A final tip: bury cash in your backyard at your own risk!
1 Re Josipovic  VSC 43
2 Wills Act 1997 (Vic) s 7(1)
3 See for example, Fast v Rockman  VSC 18 & Re Ray  VSC 699
4 See for example, Jageurs v Downing  VSC 432 & Re Kelsall  VSC 724
5 See for example, Re White; Montgomery & Anor v Taylor  VSC 16
6 See for example, Re Nichol; Nichol v Nichol  QSC 220
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.