Informal and Stopgap Wills

Date: Nov 26, 2013
Document Type: Article

There may be circumstances in which as a result of time or other constraints the usual time and consideration that should be taken to prepare a formal will cannot be taken such as:

  • there is an imminent prospect the willmaker is about to or might die 
  • the willmaker’s testamentary capacity might be adversely affected 
  • the willmaker is about to depart overseas, be unavailable for a substantial period of time or is about to embark on a risky enterprise.

Where the willmaker’s intentions are definitely clear and, for whatever reason, these is not time to make a formal will,  consideration should be given to making a stopgap or informal will to give effect to those intentions

S8 of the Succession Act 2006 deals with circumstances when a court can dispense with the formal requirements for execution, alteration or revocation of a will.

The informal or stopgap can be admitted to probate if the court considers that the willmaker intended the document to be his or her will.

In reaching that decision the court has regard to the evidence relating to the manner in which the document was executed including any evidence of the testamentary intentions of the willmaker which can include evidence of statements made by the willmaker.

The court’s discretion is wide in considering whether an informal or stopgap will should be admitted to probate.

The document needs to be signed by the willmaker and preferably witnessed by two witnessed from whom evidence can be adduced that would assist the court in reaching the conclusion the document should be admitted to probate as the will of the deceased.

Even if circumstances require or force you to make an informal will you should at the earliest available opportunity – for example when your return from your overseas trip - prepare and execute a formal will.

Please call us on 8268 4000 if you wish to discuss any matter concerning wills or estates.

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