In recent years, more Australians have turned to unconventional ways to express their final wishes—often bypassing formal, written wills. While it may seem simple or heartfelt to state your intentions verbally or record them, this can introduce serious legal risks. With informal wills on the rise, it’s crucial to understand how the law treats non-written wills in Australia.
In this blog, Legal Finda walks you through real legal risks, legal recognition under the Succession Act, and what you need to know to protect your legacy. One key focus is understanding the legal risks of non-written wills, especially when emotions and technology replace legal formalities.
The Rise of Informal Wills in Australia
Across Australia, particularly in New South Wales, there has been a noticeable uptick in people leaving verbal instructions or even video-recorded wills instead of formally written documents. This trend has been driven by a few key factors:
- Greater access to smartphones and recording technology
- A desire for quick, easy, and less costly alternatives
- An incorrect assumption that verbal or recorded wishes are legally binding
But here's the truth: informal wills can open the door to legal conflict, family disputes, and potential invalidation of your wishes. These scenarios highlight some of the legal risks of non-written wills that many people overlook.
Legal Risks of Non-Written Wills: What You Need to Know
The legal risks of non-written wills can be serious, especially when they don’t meet the requirements set out by the law. Here’s what you might be exposing your loved ones to:
1. Uncertainty Around Intentions
Without clear documentation, it's difficult for courts to determine your actual intentions. Was it a serious declaration? Or a passing comment?
2. Greater Likelihood of Disputes
Verbal or informal wills often lead to family disputes. One person might recall a conversation differently than another, and without written proof, it becomes a game of “he said, she said.”
3. Potential for Total Invalidation
The court may reject the non-written will entirely, especially if there is no corroborating evidence. This means your estate could be distributed according to the rules of intestacy, not your wishes.
4. Costly Legal Proceedings
Contesting or validating an informal will involves legal fees, court delays, and emotional strain. This often ends up reducing the value of the estate left behind.
These examples illustrate just how significant the legal risks of non-written wills can become during estate administration.
Are Verbal Wills Ever Recognised in Australia?
Let’s address one of the biggest questions we get:
Are verbal wills legally valid? The answer is: not usually—but sometimes.
Under Section 8 of the Succession Act NSW, the court may accept an informal will if it can be proven to reflect the testamentary intent of the deceased. This could include a verbal statement, video, or audio—but the court sets a very high bar.
To be recognised, your informal will must show:
- A clear intention to be your final will
- Evidence that no later will was created
- Enough detail to distribute the estate
Legal Insight: While possible, proving a verbal will is valid is incredibly difficult without additional written or witness evidence. This is another critical aspect of the legal risks of non-written wills that many people don’t fully grasp.
The Role of the Succession Act in Informal Wills
The Succession Act informal wills provisions are designed as a safety net—not a recommended route. The courts do their best to honour genuine wishes, but they must also follow legal principles.
Key things the Act requires:
- Sufficient evidence of the deceased’s intent
- Verification that the will wasn’t made under duress
- Proof it wasn’t meant to be temporary
If these conditions can’t be met, the informal will won’t stand in court. Understanding these technicalities helps explain why the legal risks of non-written wills are so substantial.
Real-Life Scenarios: What Can Go Wrong
Let’s explore how non-written wills have played out in real Australian cases.
Case Study 1: The Voice Message That Cost Everything
An elderly man left a voice message for his son explaining how he wanted his assets distributed. After his death, the court ruled that the message lacked legal clarity and was not intended as a final will. The estate was divided according to intestacy laws.
Case Study 2: The Video Will Dismissed
A woman created a heartfelt video on her phone after a terminal diagnosis. Despite her clarity and sincerity, the court found that the video didn't meet the Succession Act’s standards. Her estranged husband (from whom she was separated but not divorced) inherited everything—against her expressed wishes.
These examples are sobering reminders of the legal risks of non-written wills and how failing to meet legal standards can devastate final wishes.
Why Proper Legal Advice Matters?
Writing a legally binding will may seem overwhelming—but it’s far more secure than relying on a non-traditional approach.
Here’s what a formal will gives you:
- Legal enforceability
- Clarity for beneficiaries
- Protection from disputes
- Peace of mind
On the other hand, non-written wills are open to interpretation, conflict, and invalidation, making them one of the biggest legal gambles in estate planning.
Related Concepts to Understand
- Informal Wills Australia: Includes any will not executed according to formal legal requirements—like unsigned, undated, or unwitnessed documents.
- Verbal Will Legal Validity: Generally invalid unless supported by strong evidence and accepted by the court under Section 8 of the Succession Act.
- Non-Written Wills Enforceability: Rare and hard to prove. Courts require significant corroboration, which adds to the legal risks of non-written wills.
What Should You Do Instead?
Here’s how to make sure your wishes are legally protected:
- Draft a formal, written will
- Get help from an experienced legal professional
- Keep your will updated, especially after major life events
- Store it safely and tell your loved ones where to find it
Conclusion
The stories of informal and verbal wills ending up in court are more common than you think. While it may seem easier to record your wishes or say them aloud, the legal risks of non-written wills in Australia are too serious to ignore. Between emotional stress, court battles, and unexpected outcomes, the cost of an informal will can be far greater than you imagine.
Want to ensure your legacy is respected and protected? Speak with a trusted legal advisor through Legal Finda.
We’re here to connect you with the right expert to draft a solid, enforceable will—so your wishes are never left to chance.
