Is a document typed out on a mobile phone a will? The validity of unsigned wills.

A last Will typed out by the deceased in the notes section of an iPhone was recognised by the Queensland Supreme Court as a valid Will. Here, the deceased sadly took his own life. Shortly before he died, he created a series of documents on his iPhone, most of them final farewells. One was expressed to be his last Will. The Supreme Court found that the document in the iPhone embodied the testamentary intentions of the deceased and was made in contemplation of the deceased’s imminent death. In the circumstances, the Supreme Court was satisfied that the deceased intended the document created on his iPhone to form his Will.

In another case, where the deceased also committed suicide, the New South Wales Supreme Court held that a Microsoft Word document labelled “Will.doc” completed by the deceased and found in his laptop after his death formed the last will of the deceased and was admitted to probate.

The above two cases highlight the importance of giving due consideration to documents left behind by a deceased that may not conform to the traditional format of a Will, namely a document that is printed or in handwriting and which is signed by the deceased before 2 witnesses. Under Part 1X of the Wills Act (WA) 1970, the Court has the power to dispense with the formal requirements for a Will and instead recognise a document made by the deceased as a valid Will.

The Law on Informal Wills

Under section 32 of the Wills Act (WA) 1970, an informal Will is recognised as a valid Will if the following criteria are met:-

• there is a “document”;
• which purports to embody the testamentary intentions of a deceased person even though it has not been executed in the manner required under the act; and
• the Court is satisfied that the person intended the document to constitute the person’s will.

In the Wills Act (WA) 1970, a “document” is defined as “any record of information” including —

• anything on which there is writing; or
• anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
• anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
• a map, plan, drawing or photograph.

The wide definition of a “document” means that all manner of information which records the deceased’s testamentary intentions including handwritten notes, typewritten documents, video recordings, photographs, drawings and documents created on a phone, tablet, laptop or desktop are relevant in considering whether the deceased left behind an operative will.

Having regard to the wide definition of a document, does this mean that any document left behind by the deceased would constitute a valid will?  How about drafts which a deceased may have prepared on his or her computer?   What about handwritten notes detailing the distribution of assets in the event of death?  Such documents may have been “dry runs”, preparatory notes or mere thoughts which the deceased may have made before finalising his or her testamentary intentions.

Under section 32 of the Wills Act (WA) 1970, the focus in proving an informal Will is whether the document embodies the testamentary intentions of the deceased, namely the distribution of the deceased’s assets upon death and whether the deceased intended the document to constitute his or her last Will.  In forming its view, the Court may have regard to the document itself and to any evidence relating to the manner of execution or testamentary intentions of the person, including statements made by the person.

A document which embodies the deceased’s testamentary intentions is by itself not sufficient.  There must be evidence which satisfies the Court that either at the time the document was brought into being or at some later time, the deceased, by some act or words, demonstrated that it was his or her intention that the document should operate as his or her will.

If you are the executor named in the last will or an intended administrator of an intestate estate or simply a family member of a recently deceased person, it is imperative that you preserve the personal papers and effects of the deceased.  A document may be found among the deceased’s personal papers and effects which contains the deceased’s testamentary intentions or the alteration or revocation of an existing will or the revival of a previously revoked will.   In today’s technological world, this will include all electronic devices capable of creating and storing information such mobile phones, tablets, laptops, desktop computers and video recording devices.

Notwithstanding that the Court has power to admit an informal will to probate, the most prudent path is to make a formal will.  An informal Will leads to great uncertainty as the Court may not be satisfied that the deceased intended the document to constitute the deceased‘s last Will.  Besides the uncertainty, proving an informal may be a costly and emotional affair for the beneficiaries.

Over the years, Robertson Hayles Lawyers has had to assist beneficiaries to seek the admission of unsigned documents to probate, sometimes in sad circumstances where a deceased left a message on the distribution of assets before committing suicide.

If you require advice in relation to informal wills created by a deceased, please contact Robertson Hayles Lawyers at 9325 1700 or by email at enquries@robertsonhayles.com

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.