An application to admit an informal will to probate was granted in the recent case of Re Logan [2021] VSC 131. The deceased made handwritten changes to an unexecuted copy of his previous will. He signed the informal wall in the absence of any witnesses, and not in accordance with the formal requirements set out in the Act.
He signed the informal will during early stages of the COVID-19 pandemic when he was unable to update his will through his solicitors due to the first COVID-19 shutdown. He was 93 years old and living in an aged care facility. The amendments were clear and logical.
Section 9 of the Wills Act 1997 (Vic) (“the Act”) allows the Court to admit an informal Will (that has not been executed in accordance with the formal requirements set out in the Act) to probate. McMillian J states that: “The section is a remedial provision. The intention of the legislation is to allow the Court to give effect to a testator’s true intention even though a will has not been validity executed. It should be construed to achieve the objects and purposes of Act, although the importance of the formality should not be unduly relegated.”
McMillian J was satisfied in Re Logan that the deceased had testamentary capacity when he signed the informal will and that he intended it to be his final will. He found that the three criteria set out in section 9 where satisfied, namely that:
- there must be a document;
- the document must record the deceased’s testamentary intentions; and
- the deceased must have intended the document to be his or her will.
Whilst section 9 can be relied upon when the Court determines that the above criteria have been met, where a will has been made without being validly executed and the opportunity exists for a fresh will to be validly made, a fresh will should be made as soon as possible.
Current COVID-19 restrictions in Victoria provide the freedom to seek legal assistance to make a will or update an old will and this opportunity should not be missed. No one knows when circumstances will change requiring further lockdowns.
If you or a loved ones need to make a will or update a will that no longer reflects current wishes or circumstances make it a priority to do it now!
If you need assistance in reviewing a current will or making a new will please contact Fleur Craig of Armour-Craig Legal on (03) 5636 4986 or fleur@armourcraiglegal.com.au.