Attempting to save money on a Will can expose an estate to far greater cost later. A recent New South Wales Supreme Court decision illustrates how informal testamentary documents can create uncertainty, delay and costly litigation, leaving families and beneficiaries to navigate avoidable legal disputes at an already difficult time.

Although the Court may, in certain circumstances, exercise its dispensing powers to recognise an informal Will, the outcome is never guaranteed. In this case, the deceased’s decision not to incur the cost of formalising a new Will meant he died leaving only an informal document, exposing his estate to delay, significant legal expense and considerable stress for those left behind.

How the dispute arose

The deceased had made a formal Will in 2007. In 2024, while seriously ill in hospital, he wrote his final wishes on two hospital meal menus. He later contacted a Solicitor about preparing a new Will but chose not to proceed after learning the likely cost. When he died, there were two competing documents: the 2007 formal Will and the handwritten menu notes leaving the estate to a friend, Mr Muhvich. A decision to avoid the upfront cost of formalising the Will ultimately opened the door to a contested Court proceeding.

Mr Muhvich asked the Court to admit the hospital menu documents to probate as an informal Will. That claim was opposed by Sarah, the daughter of the deceased’s former partner, who argued that the 2007 Will remained the last and only valid Will. Given the estate was valued at $500,000, the dispute carried significant financial and personal consequences.

When can an informal Will be valid?

In NSW there are strict legal formalities required to make a valid Will.  Under section 8 of the Succession Act 2006 (NSW), the Court can in certain circumstances accept a document that was not properly signed and witnessed if it records the deceased’s testamentary intentions and was meant to operate as their Will. These cases turn on the surrounding evidence, including what the deceased wrote, said and did. That often requires detailed evidence from witnesses and close examination of the deceased’s circumstances, which is one reason these disputes can become expensive. Here, the Court accepted that one of the hospital menu documents could operate as an informal Will because it was written, signed and dated by the deceased, set out how he wanted his estate to pass, and was supported by evidence that he regarded it as his new Will. Because it was inconsistent with the 2007 Will, the Court found that the earlier Will had been revoked.

Why this matters

While an informal document may be upheld, proving that outcome can be slow, uncertain and expensive. A properly prepared and executed Will gives you the best chance of ensuring your wishes are carried out clearly, reduces the risk of dispute and helps protect your family and beneficiaries from unnecessary cost and stress. Investing in professional legal advice now can provide certainty for your estate and peace of mind for the people who matter most.

If you would like advice about preparing or updating your Will, please contact our Wills and Estates team on (02) 4928 7300 or email willsandestates@mullanelindsay.com.au.

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