The law specifies certain legal requirements for a document to be regarded as a person’s valid Will. Principally, these requirements are that:
- the person making the Will (Testator) signs the document at the foot and preferably at the foot of each page;
- in the presence of two witnesses who also sign the document and who verify that they witnessed both the Testator and each other signing the Will;
- the Will is then dated the date on which it was signed.
In recent times the law has allowed the Court to regard documents which don’t strictly comply with the legal requirements of a Will, to be regarded as a Will and these documents
are called Informal Testamentary Documents.
Our firm recently was involved in matter where a terminal client wanted to make changes to her Will and a neighbor handwrote a memorandum indicating certain intentions the Testator
had in regards to income from two investment properties. That memorandum was signed by the Testator and also by the person who wrote it. Additionally the Testator signed a letter
addressed to beneficiaries wishing to confirm her intentions regarding the income referred to in the memorandum. That letter was clearly noted as a “draft” and it too was regarded as an
Informal Testamentary Document. The Testator died shortly after signing the Informal Testamentary Documents and before being able to speak to one of our lawyers.
The Court held that in the circumstances it was not satisfied that the Informal Testamentary Documents form part of the Will of the deceased or are a Codicil (an amendment) to the Will.
The deceased’s intentions as noted in the Informal Testamentary Documents accordingly have no legal effect although the beneficiaries involved have indicated they will respect and abide
by the intentions of the Testator as noted in the Informal Testamentary Documents.
This case clearly shows that Informal Testamentary Documents still need to satisfy the Court as to whether the deceased actually intended them to operate as a Will or as a Codicil. Any changes to a Will should be attended to by a qualified lawyer to ensure their validity and enforceability.