Isle of Man: iWills - The Age Of The Digital Will

Last Updated: 17 August 2015
Article by Kate Clague

It is undeniable that the 21st Century has witnessed one of the greatest and most expeditious developments of modern history – the Digital Revolution; an era which has seen a definitive shift from the traditional and tangible to this, the Digital Age.

One of the biggest challenges facing jurisdictions in this digital age is keeping pace with the continuing developments of modern life. People are handling their assets and data differently, with more and more people managing their financial, professional and personal lives online. People's use of and reliance on technology will only continue to grow as technology advances, and consequently it is of mounting importance that the traditional Will making process is adapted and innovated to ensure that it does not lag behind.

Forward-thinking companies such as Google and Facebook have recognised this shift, and in a pioneering move have made provision for individuals to appoint, for all intents and purposes, a digital executor to manage their accounts when they are no longer alive. Google allows its account holders to appoint a "digital heir" to posthumously manage their Cloud data and Gmail accounts, while Facebook now permits its members to appoint a "legacy contact" – a designated individual who is authorised to manage and memorialise the deceased member's account. Interestingly, Facebook will honour Will appointments of digital heirs in the event that an individual does not appoint a "legacy contact" through the site during their lifetime.

A Will allows an individual to expressly stipulate how they wish for their assets to be dealt with and distributed when they are no longer around; helping to ensure that their estate passes as they intend. The Isle of Man has strict legal requirements as to how a Will may be created and executed – in brief, in order to constitute a legally effective Will, the document must be in writing, signed by the testator (or by some other person in his presence and by his direction) and witnessed by at least two people in the presence of each other. In the absence of a validly constructed and executed Will, the law will prescribe how and who will inherit your estate by virtue of the Administration of Estates Act 1990.

However, Australia's landmark case of Re Yu [2013] QSC 322 has presented somewhat of a modern legal breakthrough. In this case the Court considered the extenuating circumstances in which a suicidal man recorded his final wishes; recognising and upholding what was, essentially, his "iWill".

Prior to Mr Karter Yu's suicide in 2011, he drafted several documents on his iPhone, bidding his family and friends farewell. One of the documents saved on Mr Yu's iPhone purported to be his last Will and Testament. Mr Yu's "iWill" appointed his brother as his executor, who made an Application to Court for a formal declaration that the electronic document did indeed constitute the valid Will of Mr Yu, and that it be admitted to Probate with the same granted thereon.

Down Under arguably has one up on the Isle of Man, in that its laws recognise 'Informal Wills' i.e. Wills which do not satisfy the formal requirements for validity. The Court is bestowed with a judicial "dispensing power" to admit a Will to probate, even where the formal legal requirements of a Will are not met. When considering whether or not to invoke this power in the case of Re Yu, the Court applied a three pronged test:-

  1. Does a document exist?

    Under Australian law, a 'document' includes any tape, disc, or article from which images or writings are capable of being produced. The iWill, produced on Mr Yu's iPhone, therefore passed this stage.
  2. Does the document express the statutory intention of the deceased?

    The Australian Court was satisfied that the iWill set out Mr Yu's testamentary intentions; appointing his brother as executor and dealing with the whole of his property at a time when he was clearly contemplating his death.
  3. Did the deceased intend for the document to form his Will?

    The Court considered evidence produced by police who had investigated Mr Yu's death, and noted that the iWill was drawn shortly after he wrote his farewell messages. The Court therefore concluded that Mr Yu had intended that the iWill be operative, and honoured his wishes; making a declaration that the Will was valid and granting Probate in respect of the same.

The Australian Courts seem to have embraced the Digital Revolution; offering a modern and practical approach in their interpretation of Wills. In 2013 the Supreme Court of Victoria admitted a Will to Probate which had been recorded by its testator via webcam, and in 2012 the Supreme Court of New South Wales upheld a Will created on a laptop and saved as a Microsoft Word document. Perhaps it is not implausible to think that the (Australian) Courts might uphold Wills created via other forms of modern media in the future, such as e-mails, text messages and social networks.

Circumstances and scenarios such as those in Re Yu have yet to present themselves as test cases before the Isle of Man Courts of Justice. While it is possible that Australia's interpretive stance could be of persuasive authority in the Manx Courts, the laws of the Isle of Man (and indeed the United Kingdom) do not presently provide for a statutory "dispensing power" such as that available to Wills and Probate applications in Australia. Accordingly, at present the only way to ensure that your estate – whether digital or tangible - passes as you intend and benefits the people you wish, is by seeking proper legal advice and preparing a legally effective and enforceable Will.

Technological advances dictate that the law must surely adapt and progress with modern life and perhaps this is something that the Isle of Man legislature will need to consider in detail in the future, in order to ensure that its practices do not become stagnant in this Digital Age.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kate Clague
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