In Victoria, for a will to be valid, it must be in writing and signed by the testator and witnessed by two or more people present at the same time; at least two of the witnesses must attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

However, s 9 of the Wills Act 1997 (the Act) provides that the Supreme Court may accept a document that reflects the testamentary wishes of the deceased but does not meet the formalities expressed in the Act (an Informal Will).

Additionally, the Court must be satisfied (on the balance of probabilities) that at the time the Informal Will was made the deceased had testamentary capacity and was not pressured or coerced into making it.

Marija Josipovic died in October 2015, leaving a handwritten will dated 11 September 2002 (‘the will’) appointing Maria Roscic and Mate Roscic as executors of the estate. Mate predeceased Marija and Maria has renounced probate. State Trustees(the plaintiff) has been authorised to apply for letters of administration with the will annexed under the Trustee Companies Act 1984.

The plaintiff discovered in Marija’s safety deposit box the certificate of title to her house and a document handwritten in Croatian and signed by Marija dated 12 September 2002 (‘the informal document’). The Informal Document directed her executors to recover $50000 buried in the backyard of her home and give $45,000 to Ilija Josipovic and keep $5,000 for their assistance. It also contained a burial direction, and a wish for Ilija Jospovic to use the money to build a monument.

The plaintiff followed the instructions and discovered $50,000 cash buried in the backyard of Marija’s home as described by the informal document.

The plaintiff submits that Marija intended the informal document to take effect as a testamentary document. Marija had signed the document, it was stored with her financial institution with other important items and was executed only a day after her will, thereby forming part of a broader course of action settling her testamentary affairs.

Although the plaintiff could not provide evidence in respect of Marija’s testamentary capacity at the time the will or the informal document was drafted. Medical evidence suggests that Marija had no cognitive deficit that would impair her capacity. Additionally, the written contents of the will support that Marija understood the nature of her assets and the effect of the document which correctly identified the amount of cash stored in the ground and its position, and directed her named executors to carry out her instructions for distribution of the cash.

Given the deceased prepared the document and made arrangements for it to be stored in her safe deposit box and there is no evidence to suggest the beneficiaries of the buried funds were aware of it, the Court was satisfied the deceased knew and approved of the informal document and it was not procured by undue influence.

The court accepted that Marija intended that the document the document would take effect, in conjunction with her will, upon her death; intending that the informal document take effect as a codicil to her will.

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