One of the historical and fundamental requirements of making a Will in Queensland is that in order for a Will to be valid, the willmaker must sign the document in the presence of 2 witnesses.
In recent years, amendments have been made to the Succession Act 1981 (Qld) (the Act) to allow the Court discretion to declare a Will to be valid, in circumstances where the Will may not meet the technical requirements to be valid under the legislation. One such requirement is where the Will has not been properly witnessed.
Section 18 of the Act provides that if the Court is satisfied that a person intended a document to form the person’s Will, then the document forms a Will if it claims to state the testamentary intentions of the deceased person.
In November 2013 the Supreme Court of Queensland delivered the decision in the matter of Re: Yu. The case is of particular interest as the deceased’s alleged Will was composed of a number notes stored on the deceased’s iPhone.
The deceased had made a number of notes on his iPhone which disposed of the deceased’s property upon his death and provided for its distribution at a time when the deceased was plainly contemplating his imminent death.
The Court held that the record of the deceased’s intention stored on his iPhone at the date of his death was sufficient to document his testamentary intentions for the purposes of section 18 of the Act. The Court found that this document demonstrated an intention to appoint the deceased’s brother as the executor under the document as well as nominating an alternative executor. The document also authorised the executor to deal with the deceased’s affairs in the event of his death.
Whilst there have been several cases concerning informal Wills since the amendments to the Act were passed, this particular case demonstrates the significance of these changes. This case also highlights the need for willmakers to ensure their estate planning is up to date as the cost for applying to have a document recognised as an informal Will under the Act far outweighs the cost of preparing a valid Will.
Willmakers who leave their estate planning to the last minute and attempt to make an informal Will are also at risk of their purported Will not meeting the threshold requirements to be determined as an ‘informal Will’ and worst of all, risk leaving the issue to be litigated in the Courts by their surviving family members.