May 27, 2024

Verbal Will Agreements: Why They Are Not Worth the Risk

In the realm of Estate Planning, verbal Will agreements are as good as non-existent. As the saying goes, they are “not worth the paper they are written on.” Legally, a Will must be in writing to be valid. Mining and resources executives, professionals, and business owners often delay Estate Planning and drafting a Will. Although their demanding schedules and high-pressure work environments make this understandable, not having a valid written Will is irresponsible, particularly when dependents are involved.

This article explores what happens if a verbal promise as to a person’s estate or Will is made but not legally documented in writing, and why it’s crucial to have a properly drafted Will.

Why Verbal Will Agreements Don’t Work

A verbal Will agreement, essentially a promise made verbally about how one’s assets should be distributed upon death, holds no legal weight. The law requires that a Will be in writing, signed by the person making the Will (the testator), and witnessed by at least two people who are not beneficiaries.

What Happens if a Verbal Promise is Made?

Imagine a scenario where someone makes a verbal promise to you regarding their estate. If they pass away without having documented this promise in a written Will, you may face significant challenges. Here are the key issues:

  1. No Legal Standing: Broadly speaking, verbal agreements especially in relation to a Will are not recognised by the court.
  2. Family Disputes: Verbal promises can lead to disputes among family members and other beneficiaries. Without a written will, it often becomes a matter of “he said, she said,” causing friction and costly legal battles that take a significant emotional and financial toll.
  3. Unclear Intentions: Even if a verbal promise was made with the best intentions, memories can waiver, and the exact terms of the promise can be misinterpreted or forgotten.

The Impact of Verbal Promises

An individual can change or alter their affairs based on a verbal agreement. Major decisions can be influenced by the belief that they will be inheriting certain assets, such as a family property. When so much can ride on what was discussed but not put to writing, seeing that this hasn’t been honoured in the final Will can make it feel as though the rug has been pulled out from under you.

For those in this position who are already mourning the loss of a loved one, the confusion that comes with unexpectedly being excluded from their Will can be devastating. That person may have relocated, accepted or quit a job, or even provided the testator with services free of charge with the promised inheritance in mind. Because of this, the deceased’s Will could completely uproot plans and lead to great resentment and family upheaval.

Why Blended Families Need Clear, Written Wills

Leaving your affairs in disarray, especially with a blended family, can complicate already complex financial and legal matters. If you or your partner have children from previous relationships and you pass away with only a verbal Will in place, family conflict is likely even certain as members may compete for your estate.

Married couples often leave assets to each other and then divide the estate equally among their children. However, with blended families, this approach usually needs adjustment due to the additional complexities involved. We have written about the importance of estate planning in blended families, you can view that here.

Ensuring a Valid Will

To avoid these pitfalls, it is essential to have a properly drafted and legally binding Will and thought out Estate Plan. Here are the steps to ensure your estate is protected:

  1. See a Lawyer: Consulting with a lawyer who specialises in Estate Planning is crucial. They can guide you through the process of drafting a Will that is clear, comprehensive, and legally sound.
  2. Talk to a Financial Advisor: In addition to a lawyer, a financial advisor can help you understand how to best manage and distribute your assets. They can provide insights on tax implications and strategies to the benefit of your beneficiaries.
  3. Get a Proper Estate Plan: An estate plan goes beyond just a Will. It includes setting up trusts, making healthcare directives, and designating powers of attorney. This comprehensive approach ensures that all aspects of your estate are managed according to your wishes.

Before You Take Off, Secure Your Legacy With an Overseas Will

For mining and resources professionals relocating overseas for a job, many tasks demand attention, often on short notice. Unfortunately, important legal documents like an International Will and Powers of Attorney frequently get overlooked.

Even if you have an Australian Will, it might not cover assets in other countries or be valid if you pass away abroad. The solution is often an International Will, made in accordance with the Convention, though it has its own complexities.

For example, an International Will requires three witnesses, one of whom must be an authorised representative, such as a solicitor or notary public. Additionally, only certain countries, like the UK, Canada, and the United States, recognise International Wills.

Next steps

Relying on verbal promises for Estate Planning is an unnecessary risk that can leave your loved ones in a difficult position. To avoid complications and ensure your wishes are honoured, it is imperative to have a written Will and a solid Estate Plan. Don’t leave your legacy to chance—consult with professionals and get your affairs in order.

Investing in quality, collaborative advice that aligns legal, tax and financial planning is often worth so much more later in terms of avoiding unnecessary tax, costly legal fees, and the despair of going to court and on the upside, enduring financial security for those you love.

For more information, please contact Robert Lamb, on +61 (0) 7 3007 2000 or email

Resources Unearthed is a solutions hub that provides integrated financial, legal, property and accounting & business advisory services for executives, professionals and business owners in the mining and resources sectors.

The information in this article is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate, we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.



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