The obvious answer to this question is “You can”. But a (good) Lawyer’s response to this question is “You can – but we would prefer it if you didn’t!”
There are formal requirements for a Will to be made: it must be a written document, signed by the person making the Will (the testator) in the presence of and signed by two witnesses.
If a Will document does not meet the formal requirements to be a valid Will, then the document may not necessarily fail – but there is a process to go through.
The Will document may still be found to be a valid Will if the Court can be satisfied that the deceased person intended the document to be their Will and that it purports to embody testamentary intentions.
Any Lawyer with experience in this area of the law will tell you –
It will take some time for the Court to make a decision (months or in some cases longer);
These cases are usually complex, and there will likely be significant legal and other fees to be paid throughout the process; and
The decision as to whether the document is “a valid Will” is not certain – as the Court will make the decision after considering all of the relevant evidence before it at a final hearing.
There have been many cases both in Australia and also overseas, where the Court has been asked to decide if a document is a “valid Will”. Some documents that have been found to be Wills have included:-
A Will typed on an iPhone was found to be a valid Will in 2013 in Queensland;
Words scratched on a tractor fender were found to be the deceased’s valid Will in a 1948 case in Canada;
In 1926 in the United Kingdom, the Court found that a Will written on an empty Ostrich egg shell was a valid Will; and
In another UK case back in 1989, a Will written on a wall in Ukranian was a valid Will.
While these cases are all very interesting (well, maybe only to us boring Lawyers), we would rather you avoid your Will becoming an ‘interesting case’.
If you would like to make a new Will, please contact us to speak with one of our experienced estate planning Lawyers.
