A recent article published by The Courier-Mail writes about a remarkable set of circumstances where the Supreme Court of Queensland recently ruled that an electronic typed document made by a deceased person on a ‘Notes’ app on his smartphone constituted a valid will.
Thomas Ashton, a Wills & Estates solicitor at Quinn & Scattini, discusses the case –
In this extraordinary and remarkable decision, the deceased person typed a document on the ‘Notes’ app on his smartphone and tragically took his own life shortly afterwards. The typed document on his smartphone named his brother as executor and (presumably) gave instructions regarding the distribution of his estate.
In this matter, the deceased person typed his will into the ‘Notes’ App on his smartphone shortly before taking his own life. In Queensland, the Succession Act 1981 specifies the requirements for preparation and execution of a valid will. Generally, in Queensland a valid will can only be made by an adult who possesses testamentary capacity, and must be:
- In writing;
- Signed by the testator; and
- Attested to and witnessed by two independent persons.
This begs the question of how and why did the Supreme Court rule that the typed notes on an iPhone, which were never formally ‘executed’ (i.e. signed and witnessed), constituted a valid will?
In short, the answer is that Queensland inheritance legislation gives the Supreme Court the power to deviate from or dispense with the strict execution requirements in certain circumstances. If the Supreme Court is satisfied that a document (or part of a document) was intended by a deceased person to be a valid testamentary instrument, the Succession Act grants the court the power to dispense with the formal execution requirements generally required by legislation, however this requires an applicant to provide evidence to the Supreme Court proving that the document was intended to express the final testamentary intentions of the deceased person. Given that the document in this particular matter was a typed electronic document on the deceased’s smartphone, this decision of the Supreme Court also relies on the very technical definition of the term ‘document’ which (fortunately for this particular matter) includes electronic documents.
It cannot be stressed enough that this matter encompassed an extraordinary and unique set of circumstances which led to this remarkable and unprecedented decision. It should not however be assumed that a person can draft and execute a valid will or testamentary instrument on a smartphone or other electronic device. Such documents may not be declared valid testamentary instruments by the Supreme Court of Queensland. At the very least, there will be the substantial cost of applying to the court instead of the relatively simple process of proving a properly-prepared will.
As demonstrated in this matter, a failure to follow legislative requirements regarding preparation of a will causes significant complications in proving the validity of the will, but it also raises issues about proof and security. For example, there may be inherent difficulties in proving that:
- The deceased person was actually the author of the particular typed electronic document;
- The document was not edited by any persons after creation by the testator; and
- The typed electronic document was intended to be the final will and testament of a deceased person.
While this may seem overly technical and pointless to the ordinary person, it cannot be stressed enough that appropriate legal advice should be obtained in order to ensure that your testamentary intentions are effective and will be carried out. This not only ensures that your will distributes your estate in accordance with your intentions, but it also (believe it or not) will ultimately save money, as well as preventing unnecessary and avoidable stress and anxiety for your family upon your passing. For example, the matter discussed here was only resolved in late 2013, though the deceased testator in question passed away back in 2011.