- Section 8 of the Succession Act 2006 (NSW) operates to give a court the power to declare a document, not executed in accordance with formal requirements, to be a will of a deceased person.
- It can be argued however, that there has been an unfounded use of this section in recent times. For the most part s 8 should be left for improperly executed documents and documents signed in extremis.
- The NSW decision of Rodny v Weisbord  NSWCA 22 helpfully confirms that the question is not whether an unsigned document expresses the wishes of the deceased but whether it was intended without more to be a will.
- In certain circumstances, such as with very elderly or very ill clients, a handwritten codicil, by the solicitor attending the testator and executed on the spot, will be perfectly acceptable and in fact preferable to delaying. If solicitors want to prepare a nice looking document in the office later, well and good although it is not necessary.
I think that I am becoming like the warhorse in the Book of Job, smelling the battle from far off. So I have been concerned for some time about what seems to be an unfounded use of section 8 of the Succession Act 2006 (NSW) so as to declare a document, not executed in accordance with formal requirements, to be a will of a deceased person. This is not intended to be a proper academic article but is too long for my usual letters to the editor.
We all know that to get an informal document over the line as a will, three conditions must be fulfilled:
- First, there must be a document;
- Second, it must state the testamentary intentions of the deceased; and
- Third, the deceased must have intended the document to be his or her will, in other words, to have effect as, or to be, a will.
Overlooking the rather unfortunate position that the ‘document’ does not require writing, we come to the other conditions. The second is clear enough provided it is remembered that many people write out drafts which are thought pieces and not final intentions. It is the third requirement which gives rise to my concerns.
I always read in LSJ the case notes on elder and succession law, partly to keep my brain in order, and partly because I am interested in the topics. Thus in the February LSJ, I read the note on ‘Informal will; not read, not seen, not read to’, which comments on the decision of the Victorian Court of Appeal in Sultanova v Balgorow (2019) VSCA 245. This alarmed me, so I went on to read the decision and also the judgment of the trial judge upheld on appeal.