The Queensland Supreme Court has recently ruled that a Will typed into an iPhone is legally valid and granted probate.
The circumstances of the case sadly involved a young man suffering a personal crisis in September 2011. He typed the Will onto his iPhone notes app before ending his own life shortly after.
The electronic Will was not witnessed so the man’s brother, who was named as executor, could not implement the young man’s wishes.
The legal requirements of a valid Will are:
- You must have testamentary capacity, meaning you must be over 18 years of age and be able to understand what you are doing;
- A person under the age of 18 may only make a Will in contemplation of marriage or if already married;
- It must be in writing;
- The Will must be signed by the person making the Will; and
- It must be witnessed by two or more witnesses present at the same time.
Despite not being witnessed, Justice Peter Lyons ruled that the Will was created with the intention of it being legal and operative.
The Supreme Court in all Australian jurisdictions has the power to admit a Will to probate in certain circumstances even though it does not comply with the formal requirements above. This most recent case however, does not mean that it can be expected a Will made on a smart device will be held to be valid, as the circumstances of this case were unique.
This case is not the first in Australia where the Court has exercised their power to rule that a document is a valid Will. The NSW Supreme Court ruled in 2012 that a suicide note left by a man was a valid Will in which he declared his mother to be his sole beneficiary and asked that his estranged wife not make a claim for any part of his estate.
Worldwide, courts have also been faced with the decision of whether something can be deemed to be a valid Will without meeting formal requirements. Canadian courts in 1948 ruled that a farmer had created a valid Will when he scratched “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” on the tractor under which he was pinned.
We warn against the creation of an electronic or DIY Will as well as the storage of sensitive documents on smart devices as it creates uncertainty for your loved ones in the event of your passing. Further, the legal processes involved in having the court rule that your unwitnessed electronic or DIY Will is valid are very costly, only increasing the stress already being felt by your nearest and dearest.
