What is an Informal Will?

An Informal Will refers to an estate planning document that does not meet the formal legal requirements for making a valid Will.

If the Supreme Court of South Australia is satisfied that the deceased intended the document to express their final testamentary wishes, an Informal Will may still be accepted for a grant of probate, even though it does not comply with the usual formalities.

Why Are Informal Wills a Concern?

Informal Wills often arise when someone attempts to update or prepare a Will quickly, perhaps in an emergency, due to illness, or when trying to avoid legal costs. With the rise of do-it-yourself Will kits, emails, and handwritten notes, Informal Wills have become increasingly common.

However, Informal Wills typically reflect poor planning and can create significant problems for those left behind. They are often unclear, improperly executed, and difficult to verify, which increases the likelihood of Court scrutiny and family disputes. In many cases, these documents cause more harm than good, resulting in unnecessary delays, unnecessary legal costs, stress for executors, and potentially unfair outcomes for beneficiaries.

Examples of an Informal Will

You might purchase a DIY Will kit and write your own Will, but forget to sign it or have it witnessed.
You might write your wishes on blank paper in bullet points, outlining how you want your estate to be distributed.
You might email your lawyer with instructions setting out your wishes, including funeral arrangements, who your executors and beneficiaries are, and how your estate should be divided. If you pass away before finalising or signing the document, the email may be treated as an Informal Will.

What Are the Consequences of Having an Informal Will?

The Court may require further information from your executors to determine the validity of the Informal Will. This process can be time-consuming.
Your executors may feel confused, stressed or overwhelmed, and the probate application may take longer to finalise.
If you use an Informal Will to revoke a previous valid Will, this may complicate matters and cause disputes between beneficiaries who may have differing views as to which Will contains the final testamentary wishes.

Why You Shouldn’t Rely on an Informal Will

While the Court can accept an Informal Will, this should not be relied upon. The process is uncertain, expensive, and emotionally taxing. The Court will closely examine the document and surrounding evidence to determine whether it was intended to be a Will, and this often requires lengthy affidavits and supporting documentation.

Relying on an Informal Will can:

Lead to disputes between family members or beneficiaries.
Result in the previous valid Will being reinstated against your final wishes.
Expose executors to liability or cause them to resign due to the complexity or stress of their role.
Significantly increase the time and cost of the probate process.

What Does the Court Consider When Deciding Whether to Accept an Informal Will?

In South Australia, the Court may admit an Informal Will to probate if it is satisfied that:

The document expresses your testamentary intentions, and
You intended the document to be your Will.

If both requirements are met, the Court may accept the Informal Will even though it does not meet the formal requirements under the law.

What Are the Requirements for a Valid Will?

In South Australia, a valid Will must meet the following criteria:

It must be in writing.
The Willmaker must sign it.
The Willmaker’s signature must be made in the presence of at least two witnesses, who are present at the same time.
The witnesses must sign the Will in your presence.
Beneficiaries of the estate must be named.