Australia: Informal wills – an update

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" test.

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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