Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthIn NSW, there are certain formalities that are required to make a valid will. Failure to observe these formalities can lead to additional delay and expense to your estate. Legislation empowers a Court, in appropriate circumstances, to utilise a dispensing power “to give effect to a testator’s true intentions despite the fact that a will has not been validly executed”.

The deceased died in 2015 leaving a handwritten will dated 11 September 2002. A further document was discovered dated 12 September 2002 (‘the informal document’). The informal document was handwritten and signed by the deceased and stored in the deceased’s safe custody packet at a bank. The informal document stated that cash was buried in the ground at the deceased’s home and $45,000 was to be sent to a named person and $5,000 was for the executors to bury her. Having discovered the informal document after the death of the deceased, the executors of the will faithfully followed the instructions and discovered $50,000 hidden as described by the informal document.

An application was made to the Victorian Supreme Court for the informal document to be admitted to probate pursuant to the dispensing power as the informal document was not witnessed in accordance with the formal requirements to make a will.  The Court noted three criteria must be satisfied namely:

(a) there must be a document; and

(b) the document must record the testamentary intentions of the deceased; and

(c) the deceased must have intended the document to be his or her will.

The Court noted “The informal document is clearly a document and it clearly records the testamentary intentions of the deceased. It makes reference to one of the deceased’s assets, and expressly makes directions as to how she wishes it to be dealt with (by the named executors of her will) in the event of her death…The informal document was stored with her financial institution with other important items and was executed only a day after her will, thereby forming part of a broader course of action settling her testamentary affairs. The deceased clearly treated the document as one of practical significance, intending that it take effect, in conjunction with her will, upon her death”.

The Court was satisfied that the deceased intended the informal document to take effect as a codicil to her will.

Whilst ultimately the application was successful, it was not without associated difficulty and delay and uncertainty for the parties involved coupled with considerable legal costs much of which could have been avoided if the deceased had consulted a Lawyer to make a will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.

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