Re: Yu [2013] QSC 322

A Will is a significant and powerful legal document and, for this reason, it must satisfy certain formal requirements: it must be a written document, signed at the foot by the person making the Will (the testator) in the presence of two adult witnesses, and signed by those witnesses.

However, 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. Documents that have been found valid include words scratched on a tractor fender, writing on a wall and words inked on an egg.

A recent case illustrates the flexible approach of the courts when assessing documents which fail to satisfy formal requirements. On 6 November 2013 Lyons J of the Queensland Supreme Court found that a document typed on an iPhone was a valid Will, and granted probate to the person named as executor. The deceased had taken his own life shortly after creating the ‘Will’.

There are strong arguments against finding that such a document is 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’.

Nonetheless, Lyons J held that, on the balance of probabilities, this was the Last Will and Testament of the deceased because several factors showed the deceased’s intention for it to be operative. For example, the document began with the words ‘This is the Last Will and Testament…’. It specified the name and address of the deceased, and appointed an executor. The deceased had also typed his name at the foot of the document, where on paper his signature would have been.

This case does not establish that any notes written on a phone can be held to be a Will. There must be evidence of an intention for the document to be operative, and the document must be reasonably clear. However, this is a significant case and another example of the lenient approach taken by the courts to informal documents. It shows the way in which the courts are adapting their application of the law to the modern age of technology and paves the way for other electronic documents, created in the absence of witnesses, to be deemed as valid and binding Wills.

With the prevalence of social media, it will be interesting to see whether a ‘Will’ prepared through an app could be valid and whether a Facebook post or tweet could be deemed a valid Will where it is the clear intention of the testator.

Vik Sundar is Practice Manager of Estate Planning, Superannuation & Tax at Chamberlains Law Firm. He advises accountants, financial planners, private business owners and private wealth clients on taxation, estate planning and business restructuring issues.