A Will has a number of strict, yet reasonable requirements for it to be validly executed, such requirements include that it be in writing, and signed by the testator (or if by another, in the presence of and under the direction of the testator). When a Will fails to meet these requirements, the Court may, pursuant to the Succession Act, ratify the Will as valid. In doing so, the Court will look at a number of factors, the most prevalent of those factors is intention.
Previously the Courts have dealt with Wills made on computers, or scrawled on the back of doors. More recently, the Supreme Court of Queensland has heard the case of a Will made on an iPhone. The case of Re: Yu involved the death of Karter Yu, who took his own life. He died with no official Will, however prior to his death he created a series of documents on his phone, most of which were final farewells, one of the documents however expressed itself to be his final Will.
The Three Conditions of a Section 18 Will
Section 18 of the Succession Act allows a Court to dispense with the normal requirement of a Will (those outlined in section 10).
For a document to satisfy the Court as a Will capable of being considered by section 18, 3 conditions must be met. These conditions are
- The existence of a document;
- The document must state the testamentary intentions of the decease; and
- The deceased must have intended the document to form their final Will.
All three requirements were met in the case of Re: Yu. In response to each of the 3 requirements, it was found that:
- An electronic document has previously be found to be a document for the purposes of a Will in New South Wales, where the legislation in question is substantially similar. The Acts Interpretation Act also lends itself to favour an electronic document as being a document for the purpose of the Succession Act.
- The document plainly set out the testamentary intentions of Mr Yu. The document dealt with the entirety of the estate, appointed an executor, and nominated an alternative executor, and authorised the executor to deal with his affairs in the event of his death.
- Lastly, the document was plainly intended to be the final Will of the deceased. The document used words such as “This is the last Will and Testament”, it also formally identified Mr Yu, as well as referring to his address. Furthermore the court found that the appointment of an executor, the dealing with the whole of the estate, the printing of his name in the place where a signature would generally be located in a written document, and the circumstances of the documents creation all point to the document being intended to form the final Will of Mr Yu.
The Dangers of Informal Wills
Before you rush to create a Will on your smartphone, you should consider a few important factors.
In the case of Re: Yu, no party opposed the application, whilst the Court was still required to find the necessary conditions in the iPhone document, the difficulty of the application was lessened by a lack of an opposing party.
The potential dangers of keeping your Will on a phone include the possibility of the phone being lost or stolen, the data being corrupt, the phone being hacked, or the phone being destroyed.
The requirements set out in section 10 of the Succession Act seek to ensure that a Will is created by the testator, is properly witnessed, and is signed. In the case of an electronic document that has no witnesses to its creation, any person could have created the document in the name of any other person.
The person could never have never intended the document to be their Will. The document in question may be simply a draft Will, or even a joke Will. Alternatively if the document is intended to be your last Will, you rely on a Court to infer your intentions.
It is entirely possible that nobody will go through your phone, or read all of your documents after you die. Many documents may be deleted or skipped, there is no guarantee that your Will is going to be read, or even located.
As a last resort, a Will typed on a phone may be a prudent and potentially valid method of recording your final Will. However ideally a Will should be drafted by a lawyer, witnessed and stored properly to ensure piece of mind and validity. LawBuddy offers a range of lawyers that handle Wills & Estate matters for a fixed-fee, you can find these lawyers here.