In the matter of Yu [2013] QSC 322 (“Yu”) the Supreme Court of Queensland found that a document typed on an iPhone was a valid Will, and granted probate to the person named as executor. In this particular case, the Judge (Lyons J) was compelled by factors including the clear testamentary intent of the note, as the document began with the words ‘This is the Last Will and Testament…’.
The inclusion of necessary elements was also a factor of Lyon J’s decision, as it specified the name and address of the deceased, and appointed an executor. Lyon J noted that the deceased had also typed his name at the foot of the document, where on paper his signature would have been.
Are these all the elements that a formal Will requires? No. A Will is a significant and powerful legal document, and, for this reason, it must satisfy certain formal requirements. An important requirement is that it must be signed at the foot, by the person making the Will (the testator) in the presence of two adult witnesses, and signed by those witnesses.
As the iPhone Will was not witnessed, there were strong arguments against finding that such a document to be a valid Will. Where a document is created with no witnesses, there is no way of showing that it was in fact the deceased who authored it. In addition, a phone can be accessible to others, meaning that another person may have written the ‘Will’.
A document which fails to meet one or more of these criteria will not necessarily fail. A court may be satisfied that a deceased person intended a document to be their Will if it purports to embody their testamentary intentions. In weighing up the validity of such a document, the court will have regard to the manner in which the document was executed and any evidence of the deceased’s testamentary intention. The standard of proof is ‘on the balance of probabilities’ and the courts generally take an expansive approach, as there is a preference to respect, where possible, the stated intentions of a deceased person.
Why is this important?
It may be necessary when administering an estate to consider whether the deceased left any testamentary wishes or intentions on electronic devices such as an iPhone, as it may constitute an informal Will.
Applications to have an informal Will recognised however, can be uncertain and are also costly for the estate. For this reason, it is important you seek legal advice regarding your own estate planning to ensure the key requirements are met when implementing a Will.
If you would like to make a Will, please call Ashleigh Blewitt, Director of our Private Wealth Team on 02 6188 3600