Most people are familiar with a will being a written document that sets out how a person would like the assets of their estate distributed after their death and which must comply with certain formal requirements such as it must be signed by the will-maker in the presence of two or more witnesses at the same time who must also sign the will in the presence of the will-maker.
But what happens when the will is not in writing or other formal requirements are not satisfied? That is where section 8 of the Succession Act NSW comes in. Under the section a “document” stating a deceased person’s testamentary intentions can still be regarded as their will even though it was not formally executed. This is provided the document was intended to be the will of that person.
A document does not have to be on paper in written form and can even be:
* a note created and stored on a mobile phone
* a video recording on a DVD
* an unsent text message on a mobile phone
Also, examples of written wills not meeting formal requirements that could be accepted are:
* a will prepared by someone but unsigned
* a will only witnessed by one person
* an unsigned note written by a patient in hospital
Of course, to remove any doubt it is always better to have a formal will drawn up by a solicitor who will ensure it is executed properly.
July 2020