An informal Will does not satisfy all the requirements under the Wills Act 1997. If a Will has not been properly executed, problems may arise at the time probate is applied for. However, there are circumstances where an informal Will may be admitted to probate even if it does not satisfy all the requirements: s 9 of Wills Act 1997.
Obtaining probate for an informal Will
A grant of probate is an order the Supreme Court of Victoria makes to prove that the person named as the Executor of the Will is the correct person entrusted to distribute the deceased person’s assets. An Executor is still entitled to apply for probate of an informal Will and the Supreme Court has the power to determine whether or not this will be granted.
The Executor of the informal Will have to prove:
a) There is a document. This can include a document in writing, a photograph, video, audiotape, or anything capable of carrying a definite meaning;
b) The document records the testamentary intentions of the deceased. This must include language which clearly expresses what the Will-maker wanted to happen with their property when they die; and
c) The document must have been intended by the deceased to be their Will.
For example, in the recent case of Re Flanagan  VSC 649, the Executor applied for probate of an informal Will which did not meet the formal requirements as it was signed by the Will-maker but had not been witnessed. The Will-maker had left a sealed envelope with the word ‘Will’ and inside the envelope contained a document entitled ‘Last Will and Testament’. The Court admitted the Will to probate on the grounds that the Will-maker did not have any previous Wills, the language used clearly showed that it was intended to be a Will and the language was intended to be testamentary.
How to obtain probate if there is no Will?
When someone dies intestate (without a Will), it will be the responsibility of the person or persons who will likely inherit most of the deceased’s assets to apply for a Grant of Letters of Administration. These people are likely to be a spouse, partner, or child of the deceased. An application for a Grant of Letters of Administration will need to be made to the Supreme Court who will then determine whether probate is granted. A Grant of Letters of Administration is an official court document that proves you have the right to act as an administrator of the deceased’s estate.
We highly recommend making a Will and reviewing it at least every decade to make sure it is up to date and valid. This will aim to ensure no problems arise in obtaining probate when the time comes.
Nicola Maltman – Law Clerk – Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.