The decision of Re Yu in the Queensland Supreme Court
in November this year appeared to herald a new medium for
testamentary dispositions: the smart phone. The court recognised a
note written on an iPhone as a valid will, granting probate to the
nominated executor. However, the decision does not unlock the
secret to a cheap and effective will. To the contrary, the facts of
the case were unique and in general, the smart phone is the most
precarious way to make a will.
Where a will is not executed formally, the court has the power
to declare the will is valid. The court may make this declaration
where there is a document which purports to state the testamentary
intentions of the deceased and the court is satisfied that the
deceased intended the document to be their will or form part of
their will. 'Documents' aren't restricted to physical
paper documents, but are defined very broadly and include most
mediums of writing or recorded communication.
The court is extremely careful when analysing the circumstances
in which an informal will was created. At the forefront of the
inquiry is the need to avoid recognising wills that may be jokes,
written by someone else, or not sufficiently comprehensive.
The facts in the case of Re Yu were unique. The note written on
the iPhone was held to be a valid will because the court was
the note indicated the author's intentions because it was
written in contemplation of imminently passing away;
the note was written in a way which showed that the author
wanted it to be legally binding due to the level of detail
including expression and personal details;
the note dealt with the author's property so
comprehensively that it was designed to be a will; and
the note was written in circumstances that meant it was
unlikely to have been fabricated, altered or written by another
The danger of relying on the decision in Re Yu is that
it will be very difficult in the future to reproduce the same
circumstances which lead the court to declare the smart phone note
to be a valid will. Re Yu does not provide a checklist for
creating a valid will.
Ultimately, the decision to recognise an informal will must be
determined on the facts and circumstances in each case.
Further, the process of making an application for an informal
will to be considered by the court adds significant time and cost
to the administration of an estate.
Having a valid and up-to-date will is vitally important. There
is no guarantee that an informal document will be declared to be a
valid will and even if an application is successful, it will add
time and cost to the administration of your estate. This can easily
be avoided by ensuring that you have a properly drafted will in
For more information or professional advice on preparing and
executing wills, please contact HopgoodGanim's Estate Planning
and Administration team.
With offices in Brisbane and Perth, HopgoodGanim offers
commercially-focused legal advice, coupled with reliable and
responsive service to clients throughout Australia and across
There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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