Reflecting the modern world, the Queensland Supreme Court in October 2013 upheld the validity of a Will written on an iPhone 'Notes' app.
It is understood the deceased was dealing with an intense personal crisis. He prepared his estate wishes on his iPhone and shortly after, tragically ended his own life. He named his brother as executor, who brought the case before the Supreme Court as he was unable to seek probate in the usual way due to the iPhone Note not complying with the legal requirements needed for a formal Will.
Justice Peter Lyons who delivered the decision highlighted the particularly sad circumstances of the case and noted that the decision should not be seen to reduce the importance of the legal requirements to validly create a Will. The Court accepted that the iPhone Note in fact represented the last wishes of the deceased and though it was an informal Will, it was nevertheless recognised as a Will.
Does this open up the technological floodgate for preparing one's last wishes?
The importance of being formal
In an increasingly technological world, it may seem somewhat archaic that we must still put pen to paper to validly record our final wishes. Whilst technology can be a wonderful thing, when it comes to expressing a person's final wishes and providing financial security for the person's loved ones, technology can only go so far.
The impersonality of technology can create doubts as to whether what was typed was actually prepared by the testator and whether it was intended to be the person's formal last wishes; was it merely a draft or just some general estate planning thoughts? Unfortunately, when the time comes to confirm these points, it is often too late; the deceased cannot give the guidance needed.
A quick search of the iPhone App Store reveals at least four apps allowing you to draft a Will on your iPhone. Tellingly, a quick Google search for "DIY Will" results firstly in numerous articles highlighting the dangers and pitfalls of drafting your own Will, and then provides a multitude of websites offering the service.
Technology allows you to do what technology tells us is a common problem; the do-it-yourself will.
Being somewhat of an oxymoron, often when people try to save money on legal fees by drafting a Will themselves, the invalidity of the document can result in significant legal bills for the loved ones left behind. Lawyers make far more money when you get it wrong than they do in helping you to get it right.
Making it valid
There are some simple do's and don'ts for a validly created Will; these are found in State based laws. The strictest requirements are found in the Australian Capital Territory legislation (section 9 of the Wills Act 1968 (ACT)) which provides that a Will is not valid unless:
- It is in writing;
- It is signed at the foot or end by the Will-maker (or by another person directed by the Will-maker and in the Will-maker's presence);
- The Will-maker signs the Will in the presence of two or more witnesses present at the same time; and
- Two or more of those witnesses also sign the Will in the presence of the Will-maker.
Whilst these requirements sound simple enough, many cases still come before the Courts where the validity of a Will is called into question due to failure to strictly comply with the requirements.
Do-it-yourself Wills are risky and the assistance of a professional is always the best option. However, even if you use the services of a professional, the job is not done until the Will has been signed in accordance with the specific legislative requirements.
It is often the case that people approach Will-making with little to no urgency but occasions do unfortunately arise where a Will-maker passes away before finalising their Will. Questions may then arise as to the cause of the delay. Further to the recent NSW decision of Fischer v Howe, an adviser can be found to be negligent if they do not consider all relevant circumstances and apply appropriate urgency to finalising the preparation of a Will. Whether the delay is caused by the adviser or the nonchalance of the Will-maker, failing to prepare and execute a Will in a timely manner creates a legal mess that may easily be avoided.
So what does this mean for you?
Estate planning is often on the bottom of the to-do list. Even if it is on the top of the list it is often seen as too hard!
Whilst the case of the iPhone Will makes for interesting reading and good media, clients generally do not want to be test cases. Encourage your clients to give appropriate consideration to their estate planning needs – both personal and in dealing with business structures. Raise the warning flags if your client suggests they use an online DIY Will Kit to prepare their Will, and set off the sirens if they suggest using an iPhone application!
Estate planning should not be approached with a one-size-fits-all mentality. In some instances, a simple Will may really be all that is required; others may need a little more tailoring. What is important is that the document you are left with appropriately fits all of your client's needs.
In all cases, it should be remembered that even the most complex and eloquently drafted of Wills will only create a legal headache if not duly signed.
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.