Formal and Informal Wills

In NSW, a will is considered 'formal' if it is executed in accordance with section 6 of the Succession Act 2006 (NSW). A formal will must be in writing, signed by the individual making the will and be witnessed correctly. An 'informal' will on the other hand does not comply with the formal requirements however it may be admitted to probate if a court is satisfied that there is a document that states the deceased testamentary intentions and that document was intended to be a will.

Recent caselaw has shown that electronic wills can be accepted as informal wills in some circumstances. IN THE ESTATE OF ELIZABETH SEABROOKE (DECEASED) [2023] SASC 122 (11 September 2023), the Court found that a printed copy of a PDF document containing the scanned copy of the electronic version of a will document dated 15 October 2018 should be admitted to probate as the deceased’s last will and testament. This decision was very much based on the circumstances and evidence of the particular case but illustrates the growing acceptance of courts to accept electronic wills in certain circumstances.

To avoid issues with probate and ensuing court applications, you should ensure you have a valid formal will in place. If you need assistance with drafting a basic will or testamentary trust, we can assist.