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Rectification, informal and statutory wills

Rectification, informal and statutory wills

In addition to the proceedings such as family provision claims, claims alleging the will is not valid, etc, Segelov Taylor are able to assist in other will disputes including:

  • Rectification of a will,
  • Informal wills,
  • Statutory wills.

Wills and estates litigation can be costly, drawn out and frustrating.  Great care should be taken not to waste money (or deplete the estate) and to not make what is often a bad situation worse.

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What is rectification?

Rectification can occur when there is an error on the face of the will, which means that the will does not reflect the deceased person’s intentions. Legislation in all states and territories gives the Probate Court a discretionary power to rectify a will to carry out the will-maker’s intentions because an error was made or because the will does not give effect to the deceased’s intentions.   In NSW, the court can rectify a will under s 27(1) of the Succession Act 2006 (NSW). There are similar powers for rectification in corresponding acts in other states.  Where there is an application for rectification, the court may make an order to rectify a will if it  satisfied that the current will does not carry out the intentions of the deceased because: 
  1. A clerical error was made, such as a typo, or 
  2. The will does not give effect to the deceased’s instructions. 
Examples, where rectification was an appropriate remedy include:  
  • Referencing children, when they meant stepchildren,
  • Inadequate descriptions of property,
  • Incorrect name of an organisation gift-recipient,
  • Partners were signing wrong mirror wills. 
Other states and territories’ legislation :

Informal wills

What are informal wills?

An informal will is a will that does not strictly satisfy the definition of a valid will. In NSW, a will is not valid unless: 
  • It is in writing and signed by the will-maker or by some other person in the presence of and at the direction of the will-maker; 
  • The signature is made or acknowledged by the will-maker in the presence of two or more witnesses; 
  • At least two of the witnesses attest and sign the will in the presence of the will-maker. 
Wills that adhere to these requirements are Formal wills.  Informal wills are documents and can include:
  • Wills that have not been signed;
  • A will that only one person has witnessed; 
  • An unsigned note; 
  • A partially burnt signed and dated will; 
  • A signed note contained in a personal diary; 
  • A document created and stored on a phone; 
  • A file saved on a computer hard drive;
  • A video recording on a DVD; 
  • An unsent text message;
  • An audio recording.  
In NSW, under s 8 of the Succession Act 2006 (NSW), the court can dispense specific requirements of a Formal will. The court may dispense the specific requirements if: 
  • There is a document or part of a document that appears to contain the wishes of how the deceased wanted to distribute their assets; and 
  • The court is satisfied that the deceased intended the document to form their will. 
The informal will must state the deceased’s testamentary intentions, and the deceased must have intended the document to be their will.  The court may have regard to any evidence relating to the informal will; this includes, but is not limited to, the manner the document was signed (if it was signed), evidence of statements made by the deceased to others and surrounding circumstances.  The court can make various orders, depending on their satisfaction that the person intended the document to form their will. 

Statutory wills

What is a statutory will?

A statutory will is a will made by an Order of the Court. They are also known as ‘court-authorised wills’ or ‘court-made wills’.   There are made where a person lacks testamentary capacity, but where the rules of intestacy would be inappropriate. To impose a statutory will, an application to the court must satisfy the following criteria, as outlined in s 22(b) of the Succession Act 2006 (NSW): 1. The person lacks testamentary capacity  Testamentary capacity is when an individual understands the nature of a will and its effect, comprehends the extent of the estate included under the will and understands the claims on the estate. Medical reports are usually used to support and establish a lack of testamentary capacity.  2. The proposed will accurately reflect the intentions of the person as if they had testamentary capacity; The court is likely to be satisfied with what the incapacitated person is “reasonably likely” to have done considering what is known of the individual. The following evidence regarding the individual can be provided to the court: 
  • Estimates of the size and nature of the estate; 
  • Draft of proposed wills; 
  • Copies of any previous wills drafted or signed by the person; 
  • Evidence concerning the wishes of the person; 
  • Confirmation of who will be entitled to the estate if the person were to die without a will; 
  • Any persons who may make family provision claims against the estate; and 
  • The persons reasonably expected to be provided for in the will. 
3.And it is reasonable in all the circumstances of the court to authorise the will and make the appropriate orders. 

Who can apply for a statutory will?

An appropriate person, such as a family member, close friend, carer etc., can make the application. The court must be satisfied that an applicant is an appropriate person. All individuals who have a proper interest in the estate must be informed of the application; this includes anyone who may have a reason to expect a benefit. The person must still be alive and cannot be about to undertake serious medical treatment that may result in death.

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