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03 September 2021

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Wills, Powers, Estates & Family Provision Claims
Victoria

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Estates - Informal testamentary document - Video

My client had been separated from their spouse for 7 months when the spouse passed away.

The deceased did not leave a will but left a video appointing a sibling as an executor and their surviving spouse as one of the beneficiaries.

Would the video be taken as a valid claim by our client under the estate of their late spouse?

Currently, the deceased’s sibling is seeking to challenge the video and obtain all the estate.

Answered

Thank you for the question.

The video could be accepted by the court as an informal testamentary document. The By Lawyers 101 Succession
Answers (VIC) provides the following under Informal wills:

Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased, and that the deceased intended for the document to form, alter or revoke a will.

Judicial consideration of ‘informal wills’ is becoming more frequent. Informal wills might be made on paper, on computers, or even included in text messages on mobile telephones. Whether they will be accepted by the court depends upon all the facts.

If the video is accepted by the court, then s 70A of the Administration and Probate Act 1958 provides that if the will ‘does not effectively dispose of the person’s estate wholly or partially’ then the intestacy provisions of the Act will prevail.

The separation of 7 months does not invalidate a surviving spouse’s claim to distribution under the rules of intestacy. For example, if the video is not accepted by the court and there are no other partners or children, then s 70J of the Act provides that the surviving partner receives the whole of the residuary estate.

Regards

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