Unusu­al wills and where to find them: What makes a valid will?

With the advent of tech­nol­o­gy, courts have had to grap­ple with dif­fi­cult ques­tions of whether to accept new forms of doc­u­ments” as wills. In New South Wales, the Court has pre­vi­ous­ly held a DVD record­ing was a valid cod­i­cil (see our analy­sis of the case here).

More recent­ly, in Nichol v Nichol [2017] QSC 220, the Queens­land Supreme Court held an unsent text mes­sage with the words My will” was a valid will. The deceased, who com­mit­ted sui­cide, left a mes­sage on his mobile phone ask­ing his broth­er and nephew to keep all that I have”, includ­ing the house and super­an­nu­a­tion, as well as leav­ing bur­ial instruc­tions. The Court held this was an infor­mal will. If the will was not valid, intes­ta­cy laws would apply (as we pre­vi­ous­ly dis­cussed here).

Lest you think of get­ting cre­ative with your will, here are five things to know about what does and does not make a valid will in New South Wales:

1.The will must be in writing

To be valid, a will must be in writ­ing, whether typed or hand­writ­ten. Where the NSW Supreme Court held a DVD record­ing was a valid cod­i­cil, the deceased had already made a writ­ten will and then made amend­ments to the will oral­ly, through video record­ing. In the judg­ment, the Court warned against mak­ing infor­mal oral wills as it increas­es the risks of lit­i­ga­tion and cre­ates issues for ben­e­fi­cia­ries and poten­tial claimants post-death of the deceased.

2.The tes­ta­tor must have tes­ta­men­tary capacity

Wills are bat­tled over and heav­i­ly lit­i­gat­ed sole­ly on this point. The clas­sic case of Banks v Good­fel­low sets out the four ele­ments of tes­ta­men­tary capacity:

  1. the tes­ta­tor must under­stand the nature of the act and its effect;

  2. the tes­ta­tor must under­stand the prop­er­ty which he/​she is dis­pos­ing of;

  3. the tes­ta­tor must under­stand the poten­tial claims on his/​her estate; and

  4. the tes­ta­tor must not suf­fer from a dis­or­der of the mind”.

In the recent Queens­land case of Nichol v Nichol, the wife con­tend­ed that the deceased did not have tes­ta­men­tary capac­i­ty as the text was unsent and despite ear­li­er sui­cide attempts, the deceased did not make a for­mal will. The Court held that the deceased did have tes­ta­men­tary capac­i­ty. The Court accept­ed the con­tents of the will referred to spe­cif­ic assets and evi­dence of his inter­ac­tions with fam­i­ly mem­bers indi­cat­ed the deceased did have capac­i­ty. Sui­cide in and of itself is not equiv­a­lent to a lack of tes­ta­men­tary capacity.

3.The tech­ni­cal­i­ties of sign­ing a will

The tes­ta­tor must sign the will in the pres­ence of two inde­pen­dent wit­ness­es. Ben­e­fi­cia­ries can­not wit­ness a will of which they are ben­e­fi­cia­ries. Inter­est­ing­ly, a will is still valid­ly exe­cut­ed even if the wit­ness­es are not aware the doc­u­ment they are wit­ness­ing is a will. How­ev­er, this may cre­ate prac­ti­cal prob­lems at a lat­er stage if the will is con­test­ed and wit­ness­es to the will are called to give evi­dence as to the sign­ing of the will.

4.Minimum age

Unless a per­son is mar­ried, a per­son can only make a will after they turn 18 years. The Court may approve wills for per­sons under 18 years old in excep­tion­al cir­cum­stances. For a will to be made for a minor, an appli­ca­tion to Court needs to be made.

5.The effect of mar­riage on a will

Mar­riage auto­mat­i­cal­ly revokes a will and if no new will is made, the estate will be admin­is­tered accord­ing to the rules of intes­ta­cy. The only excep­tion is if the will was made in con­tem­pla­tion of a par­tic­u­lar mar­riage”. This is dif­fi­cult to prove as the courts look at the evi­dence to deter­mine the deceased’s state of mind.

While an unsent text mes­sage and a DVD record­ing have been held by the courts to be valid, infor­mal wills, the courts strong­ly warn against doing so. The costs of hav­ing to prove an infor­mal will and the delays in admin­is­ter­ing the estate make obtain­ing legal advice in draft­ing a will suit­able for your needs the cheap­er and wis­er option.