Under section 6 of the Succession Act 2006 (NSW)(Act), a Will is not valid unless:
- It is in writing and signed by the testator (or by some other person in the presence of and at the direction of the testator); and
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- At least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
Under section 8 of the Act, the Court may dispense with the formal execution requirements for a valid Will if the following conditions are satisfied:
- There is a document;
- The document states the testamentary intentions of the deceased; and
- The deceased must have intended the document to be his or her will or to take effect as his or her will.
The issue of whether a document amounted to an informal Will for the purposes of section 8 of the Act was discussed in Rodny v Weisbord . Mrs Rodny made a valid will in December 1997 (1997 will). Her son, Laurence, obtained a grant of probate of that will. The deceased’s daughter (and grandchildren) sought a declaration that a later document made in 2008 by Mrs Rodny was the last will and testament of the deceased. This later document had been prepared by a solicitor based on the deceased’s instructions given at the solicitor’s office.
It was accepted that the 2008 document did embody the testamentary intentions of the deceased. However, the issue was whether Mrs Rodny intended the draft will prepared by the solicitor to take effect as her will.
The primary judge upheld the daughter’s claim stating that “there is a substantial likelihood that Mrs Rodny intended the final draft of the 2008 will to operate as her will, as that document incorporated all of her instructions”. It was accepted that Mrs Rodny had told family members she had made a new will after seeing the solicitor in 2008. It was also accepted that she had reason to make a new will because some of the gifts under the 1997 will would fail (as that will disposed of land that had been sold Mrs Rodny following the making of the 1997 will).
Mrs Rodny’s son appealed the decision. The Court of Appeal considered the judgment of Powell J in a 1991 Supreme Court case where the judge considered that a document that has not been “seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased was in truth, no more than “instructions” or a “note of instructions”…..I find it very difficult to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.”
The Court of Appeal confirmed that the test is whether the testator intended the document to “operate” and “without more”, thereby constituting his or her will.
The evidence found that the solicitor had drafted a letter addressed to Mrs Rodny in 2008 enclosing the “draft Will” asking Mrs Rodny to peruse it and to advise whether the contents of the will met with her approval. However, the evidence also suggested that the letter and enclosure were never sent by the solicitor to Mrs Rodny nor did she ever see the final draft of the will.
The Court of Appeal upheld the appeal by the son and ordered probate of the 1997 Will to Mrs Rodny’s son.
 NSWCA 22 (27 February 2020)
 Re application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 540