Who could have contemplated that a will typed on a smartphone in
the early 2000's, unsigned and unwitnessed would be considered
a valid will?
Almost seven years ago, the Queensland Succession Act
was amended to relax the laws relating to formal requirements for
the making of the will, that is, that a will must be in writing and
signed by the will maker in the presence of two or more witnesses.
The changes introduced the "testamentary intention"
And now, the Supreme Court of Queensland in the recent case of
Re Yu has recognised the validity of an electronic "will"
created on an iPhone.
For a will to be valid now, it must be a document and must
embody the will maker's wishes about how their property is to
be divided on their death. In addition, the document must be
intended by the will maker to be a will.
Evidence can be provided to the Court that the will maker spoke
to another person about his or her intentions that that document be
their will, or in some other way demonstrate their intention that
the document operate as their last will.
The definition of "document" has also been expanded. A
"document" includes any disc or other article or any
material from which sounds, images, writings or messages are
capable of being produced or reproduced". Courts have been
asked to determine the validity of wills written in a page of a
diary and not witnessed, suicide notes, and documents saved on a
hard drive of a computer but never printed out and signed.
In a recent New South Wales case, a document was discovered on a
will maker's laptop and saved on his computer's hard drive.
It was in the form of a letter to the will maker's family
disposing of certain property in the event of his death. No printed
copy, signed or unsigned could ever be located. The Court found
that it was a valid will because it was intended to be a will. Just
prior to an overseas trip, the will maker told his business
associate, "if anything happens to me there is a will on my
computer and also one at home in the drawer". The naming of
the document, "Will.doc" was an important factor in
persuading the Court as to the will maker's intention.
However, in a more recent Queensland case, the Supreme Court
rejected arguments that a will saved on a deceased's home
computer was a valid will. The court accepted evidence that the
will maker knew that she had to print out and sign the will for it
to be valid.
In deciding these cases, the Courts are interested in the
circumstances surrounding the creation of the document, how it was
located, evidence of family members who may have had discussions
with the will maker about his or her intentions, and what searches
may have been made in relation to later wills.
Although the changes to the legislation may assist in some
difficult situations, another consequence is that there is now
uncertainty surrounding what is and what is not a valid will.
Documents that previously would have been disregarded because
they failed to comply with the strict requirements of execution are
now coming before the Courts for interpretation. Often these cases
are time consuming and costly.
Every adult should continue to ensure they have a current, valid
will and Thynne & Macartney's agribusiness and wills and
estates teams are available to assist.
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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There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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