The decision of Re Yu in the Queensland Supreme Court in November this year appeared to herald a new medium for testamentary dispositions: the smart phone.The court recognised a note written on an iPhone as a valid will, granting probate to the nominated executor. However, the decision does not unlock the secret to a cheap and effective will. To the contrary, the facts of the case were unique and in general, the smart phone is the most precarious way to make a will.
Where a will is not executed formally, the court has the power to declare the will is valid.The court may make this declaration where there is a document which purports to state the testamentary intentions of the deceased and the court is satisfied that the deceased intended the document to be their will or form part of their will. ‘Documents’ aren’t restricted to physical paper documents, but are defined very broadly and include most mediums of writing or recorded communication.
The court is extremely careful when analysing the circumstances in which an informal will was created. At the forefront of the inquiry is the need to avoid recognising wills that may be jokes, written by someone else, or not sufficiently comprehensive.
The facts in the case of Re Yu were unique.The note written on the iPhone was held to be a valid will because the court was satisfied that:
- the note indicated the author’s intentions because it was written in contemplation of imminently passing away;
- the note was written in a way which showed that the author wanted it to be legally binding due to the level of detail including expression and personal details;
- the note dealt with the author’s property so comprehensively that it was designed to be a will; and
- the note was written in circumstances that meant it was unlikely to have been fabricated, altered or written by another person.
The danger of relying on the decision in Re Yu is that it will be very difficult in the future to reproduce the same circumstances which lead the court to declare the smart phone note to be a valid will. Re Yu does not provide a checklist for creating a valid will.
Ultimately, the decision to recognise an informal will must be determined on the facts and circumstances in each case.
Further, the process of making an application for an informal will to be considered by the court adds significant time and cost to the administration of an estate.
Having a valid and up-to-date will is vitally important.There is no guarantee that an informal document will be declared to be a valid will and even if an application is successful, it will add time and cost to the administration of your estate. This can easily be avoided by ensuring that you have a properly drafted will in place.