Informal Wills in the time of Covid

Gordon Logan died on 5 August 2020, leaving a will prepared by his solicitor and executed in compliance with s 7 of the Wills Act 1997 (‘the Act’) on 26 July 2011 (‘the will’) and a copy of the will, which Gordon had amended and signed dated 17 April 2020 (‘the informal will’).

The informal will

The practice of Gordon’s solicitors with regards to the storage of wills prepared by them was to provide the client with a copy of the unexecuted will and retain the executed original will. Since the date of the will, Gordon had sold property, his named executor and several beneficiaries had died and a great-niece has been born.

In February 2020, Gordon stated that he needed to update his will and powers of attorney; he was 93 and living in an aged care facility. As a result of the first COVID-19 shutdown in Victoria from March 2020, Gordon was not able to see his solicitors, nor arrange for his solicitors to amend his will and post it to him. Additionally due to the social distancing requirements it would have been difficult to meet the usual requirements for witnesses and assessment of the deceased’s testamentary capacity as the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 had not yet been enacted.

Shortly after Gordon’s death, his son Gregory received plastic containers from the nursing home containing Gordon’s belongings. The informal will was kept separately within one of the containers in a folder with Gordon’s solicitors’ firm name on it. It appears that Gordon amended the unexecuted copy of the will using a pen and subsequently signed the document in the absence of any witnesses after making the amendments.

The case

In October 2020, Gordon’s children Anne and Gregory (“the plaintiffs”) sought probate of the informal will, under s 9 of the Act.  

The informal will commences with the words ‘My updated will as from 17 April 2020’, appoints new executors and deals with the whole of the deceased’s estate. The Court found that the changes were

 ‘complete, rational and logical, with an explanation on the relevant page such as ‘dec’ next to a predeceased beneficiary and ‘SOLD’ next to the deceased’s property which had been sold by him.’ at [23]

The handwritten changes were identified by the plaintiffs as being in Gordon’s handwriting. Gordon had signed at the bottom of each page and on the signature line at the end of the document.

The court was satisfied the informal will is a document that clearly contains Gordon’s testamentary intention, disposes of all of his assets and has been signed by him at the end of each page and at the signature clause.

The terms of the document show a clear intention that the document should take effect as Gordon’s final will. Similarly, the careful filing of the informal will with his other important documents separately from his other possessions and in a folder labelled with the name of his solicitors’ firm, demonstrates the importance with which Gordon held the informal will.

Additionally, the Court accepted the plaintiff’s medical evidence that Gordon showed no signs of confusion, delirium or evolving dementia, and that the handwritten amendments made by the deceased reflect his changed circumstances and are rational. Accordingly, the Court was satisfied that the deceased had testamentary capacity when he made the informal will and that he intended it to stand as his final will.

 

 

 

 

 

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