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.