In some cases, an individual will pass away without a will in place, but they have written an informal document before their death. A document might be deemed informal if it hasn’t been properly witnessed or has been incorrectly structured because a lawyer wasn’t involved in the drafting process.
For those who are left to administer the estate, this can create further problems, even though the Queensland Supreme Court has the power to declare an informal document is the last will and testament of the deceased.
The main issue that can arise with an informal will is that there is no way to guarantee the distribution of the estate contained within it is consistent with the deceased’s wishes. If the deceased already had an older will in place, for example, and their more recent informal will departs dramatically from this without reason, the Courts may rule that the second will be ignored in favour of the earlier one.
Issues can also arise if the deceased has not properly distributed their estate in the manner necessary for a will to be admitted to probate. This was seen in a recent case before the NSW Supreme Court, in which the deceased’s will had been written based on a template, making it harder to distribute the estate.
Finally, if an informal will has not been properly witnessed, there is no way to ensure that the will hasn’t been drafted under undue influence. This is part of the reason why individuals are required to have a will signed by a witness in order for it to be legally valid.
The easiest way to prevent the issues that can arise from an informal will or dying intestate is to draft a will using the services of a wills and estates lawyer. They will be able to advise on the specific legal requirements your will needs to fulfil in order to be granted probate and used to distribute your estate.