“Will It Do?” Wills that Worked Despite Flouting the Rules

02 Jan 2022......

will

Wills lie at the centre of estate planning and as it is a legal document it needs to follow some rules. The law says that a Will is a written document, dated, signed by the testator, in the presence of two persons, who sign as witnesses. This essential document needs to follow 3 basic rules:

  • There must be evidence that the testator (the person who writes the Will) actually created it. That means witnesses are required.  
  • The testator must be of sound mind while writing the Will..  
  • The Will should express a wish to direct the distribution of the testator’s estate to beneficiaries. Thus the Will should talk about how to distribute the testator’s assets.

But what if a Will is written without being witnessed?

What if it’s not even written on paper?

What if it is not signed?

Does the law recognise such informal Wills?

A look at law history shows that that courts often act with considerable sensitivity and flexibility in trying to ensure that the desire of the testator is carried out in the spirit it was aspired for even when all the requirements of a Will are not met.

Will written on tractor:

On June 8, 1948 a farmer named Cecil George Harris suffered an accident and got pinned under his tractor on a farm near Rosetown, Saskatchewan, Canada. Fearing he may not survive he used his pocket knife to scratch his Will onto the tractor’s fender.

 “In case I die in this mess I leave all to the wife. Cecil Geo Harris”

It was a stormy, dark night and after hours of frantic search he was found by neighbours lying in the wet clay. Cecil was taken to the hospital but he died the next day without breathing a word about his Will.

The words on the fender were discovered a few days later by his neighbours. They removed the fender after his funeral and conveyed it to a local lawyer. Those 16 words formed a case precedent for lawyers the world over because they were eventually held to be Harris’ last will and testament.

This case formed an important precedent and going forward in this digital age, the distinction between a document, a witness and real evidence is becoming blurred.

Will written in an unsent SMS:

In 2016 a man committed suicide and later a friend found an unsent SMS on his phone:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will”

The court identified the unsent SMS as a Will since it was dated, contained the deceased’s initials and date of birth (“MRN190162”). It also identified most of his assets and included clear wishes about their distribution, provided a pin code and gave instructions about his ashes.

The court also accepted evidence that the man did not send the message so that his family would not interrupt his suicide. Thus, despite lacking nearly all of the formalities of a will, it was found to be his valid last will and testament.

The shortest will in the World:

A Czech man wrote “Vše ženě” (“everything to wife”), on his bedroom wall when he realised his imminent death. It met the minimum requirements, being his own work and no one else’s. 

Answering the question- Do informal Wills work?

Yes they can. Courts do consider exceptions. But if there is even ONE crucial omission in them or if someone comes forward to contest the Will, then the litigation can carry on for years.

When Wills are written without the help of an attorney, they can run into rough weather because writers often fail to consider all the eventualities that lawyers routinely take into account. These omissions can have grave repercussions. Like in the case of Irving Duke.

Duke wrote his own will in 1984 with two provisions: if he predeceased his wife, he gave everything to her; if he and his wife died at the same time, he split his entire estate between two charities.

 Duke’s wife died in 2002 and Duke died in 2007, leaving no spouse or children. In October 2008, Duke’s sister’s children, laid claim to the estate as Duke’s sole heirs, arguing that their uncle died intestate. A legal battle commenced between them and the charities because Irving had unknowingly left a loophole—his Will did not provide instructions if he outlived his wife.

Informal Wills can carry out your wish but to be doubly sure, you need a legal eye to go over it.