The electronic age is throwing some interesting questions to the Court and prompting it to keep pace with our technology saturated modern culture.
Australian Courts have ruled that electronic and unsigned wills are valid.
There have been a number of cases in Australia that have considered whether electronic or other non-paper forms of Will, are valid and enforceable. In certain circumstances, the court has concluded that they are valid. Examples include:-
- a file named Will.doc stored on a laptop;
- a document created in the notes application of an iPhone;
- an audio tape recording;
- a DVD recording.
Whilst this is an interesting, but not unexpected, development, there are a few things you should be aware of before creating your own electronic Will.
The legal requirements for a valid Will
To be regarded as a valid Will, there are a few formal requirements that must be met:-
- the Will must be in writing;
- it must be signed, with the intention that it is the persons Will and contains their testamentary wishes;
- in the presence of at least two witnesses who must also sign the document.
Obviously, informal Microsoft Word documents and other electronic applications cannot satisfy these requirements. In these cases, the Supreme Court has the power to dispense with the formal requirements, and declare an informal Will to be nevertheless effective. The requirements are slightly different depending on the State, but generally there must:
- be a document;
- containing the testamentary intentions of the deceased; and
- the deceased intended that the document constitute their last will and testament.
A “document” is not just a document…
The word “document” is given a very wide meaning.
A “document” in this context, is anything that contains symbols or marks (like a typed document file) or relays a message that is capable of being reproduced (such as a sound or visual recording).
Uncovering the “intention” – did the deceased intend for the document to be their last will and testament?
The formalities mentioned above, are in place to ensure that only those documents that clearly contain a person’s testamentary wishes are recognised as a valid Will.
Wills are a very important and significant document. It is only right that documents made with the most serious of intentions, be classed as a Will, as compared to offhand comments, promises or mere notes made without the intention that they are to be carried out.
When a person creates a Will in the normal fashion, and signs it in the presence of two witnesses, it is usually quite clear that the person intends for that document to be his or her Will.
Where a person has an unsigned document in electronic or other form, the intention that the document was to be his or her last Will and Testament is not quite so clear. It needs to be established that the deceased had in fact intended that document to be their final Will, and contain their testamentary wishes. And this is where things get a little murky.
Was the document merely a draft? Had the testator changed his or her mind, and as such, not bothered to print and sign the document?
These are all questions to be answered before an informal Will can be declared effective. As you can imagine, this can be the source of bitter family disputes and lengthy and expensive legal proceedings between potential beneficiaries.
Yazbek v Yazbek
Mr. Yazbek was a wealthy entrepreneur who ran a business with two of his brothers. The court heard that that the deceased had told a business colleague and his brother, that he had created a Will which was located on his computer. This conversation, as well as the overall language of the Will, proved crucial to the court determining that the electronic document, entitled Will.doc and stored on the deceased’s laptop, was a “document” and that the deceased intended it to be his last Will and Testament.
In a similar case, Re Yu, the Court held that iPhone notes created on the deceased’s iPhone, constituted a valid Will. It was quite clear in the circumstances, and by reading the messages contained on the iPhone, that the deceased had intended the document to constitute his final Will and Testament.
Mahlo v Hehir
In this case, the deceased, Dr. Mahlo, had made a formal Will leaving her home to her then de facto partner, Mr. Hehir. After that relationship ended, Dr. Mahlo had created an updated Will on her computer, leaving her substantial estate to her parents and children.
Dr. Mahlo’s family sought to have the updated electronic Will located on Dr. Mahlo’s computer declared valid and a dispute arose between Mr. Hehir (Dr. Mahlo’s ex-de facto partner), and Dr. Marlo’s family.
Ultimately, Dr. Mahlo’s family were unable to convince the court that the updated electronic version of the Will should be effective. The court was not persuaded that Dr. Mahlo intended the electronic document to be her last Will and Testament.
The family was, however, able to reach a private settlement with Mr. Hehir, under which he agreed to release his claims on the estate in exchange for $195,000, he most likely being swayed by the possibility that the court’s decision would not be upheld on an appeal.
Re Nichol; Nichol v Nichol 2017
In 2016, an unsent text message was found on the deceased’s mobile phone. The text was addressed to the deceased’s brother and read –
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636
By relying on the fact that the message was not sent in the first place, the deceased’s wife argued that the text was not intended to operate as a will. Justice Brown was, however, satisfied that the message constituted an informal Will. He drew upon the fact that the text was titled “my will” and included considerable detail about how the deceased wished to dispose of his assets. Subsequently, the court treated the text as the deceased’s final will rather than a mere emotional expression of his wishes.
Re Estate of Wai Fun Chan, Deceased  NSWSC 1107
In a New South Wales decision, questions were raised about the validity of a video will. Wa Fun Chan died at the age of 85. Upon her passing, Chan left a formal Will dated 6 March 2012 and a DVD recorded in the presence of one of her children on 8 March 2012. The recording contained a supplementary oral statement of her testamentary intentions in favour of two of her children. The children applied for a grant of probate of the formal will together with the DVD recording.
Justice Lindsey ruled that the DVD was a document and admitted it to probate as an informal will. In doing so, he explicitly noted that Chan made a “series of short, and apparently well-considered, disciplined statements of intent that [stood] neatly with the will as an alteration of the primary document”. However, because the case was the first of its kind in a New South Wales court, Justice Lindsey also warned of the costs and potential issues that may arise when proving the existence of a video will.
So, what can we take out of all of this?
Although the court is moving with the times and accepting new and innovative forms of Will documents, it can be an expensive and arduous process of having an informal Will recognised by the Court. Compounding this is the sad situation of family members or would-be beneficiaries becoming engaged in bitter court proceedings.
What should you do?
Formalising your own Will eliminates the drawn out process of proving an informal Will to the court.
A formal Will can be made for pennies, and very little effort – so why not avoid the uncertainty associated an informal Will altogether.
Our Will kits give you the modern convenience of accessing a professionally drafted Will precedent, and creating your own Will as a Microsoft word document on your computer.
However – we do recommend that you take the additional step of printing out your final Will document and signing it in the presence of two reliable witnesses (whom you have not listed as your beneficiaries).
Storing your signed Will in a safe place, and giving a copy to your executor, or another person you trust, will help to ensure that your estate is handled smoothly, and with minimal fuss and your intentions are carried out.
Be aware that any documents you have saved on electronic devices, may be taken as a valid informal Will. You should ensure that any will files you have created on your PC are either finalised in written form to avoid the burden on the executor of having to prove your intentions, and/or deleted or updated.
Article Fact Checked and Updated on the 1 Feb 2022 By Kirra Griffin
Kirra is a lawyer in training, having recently graduated from a Juris Doctor degree at Melbourne Law School. As our resident legal assistant, Kirra uses her specialised knowledge of the law to translate complex concepts into easily digestible information.