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iWill – The latest development in informal Wills decisions

I was interested to read an article about a recent case where the Supreme Court in Brisbane ruled that a Will typed into a smartphone was valid. The deceased typed his Will into the “Notes” app on his iPhone shortly before taking his own life. Was that considered an informal Will?

What is the test for an informal Will?

There is a test for when a document that does not satisfy the formal requirements of a Will can be used to obtain a Grant of Probate. The test is:

  1. Does a document exist?
  2. Does the document show the testamentary intentions – or wishes – of the deceased?
  3. Did the deceased intend the document to form his or her Will?

What will a Court consider when looking at an informal Will?

In deciding whether to allow the Will, the Court considered both the contents of the Will and the circumstances in which it was written in order to determine whether it met the criteria for this test. In particular, the Court noted:

  1. The Will commenced with the words “This is the last Will and Testament” and identified the deceased by full name and address;
  2. The Will dealt with the whole of the deceased’s property;
  3. The deceased appointed his brother as Executor in his Will; and
  4. The Will authorised the deceased’s brother to deal with the deceased’s affairs in the event of his death.

Does this mean that all informal Wills, will be admitted by the Court?

This case does not mean that people generally can now use their smartphones to write their Wills. For example, in Mahlo v Hehir, a Will typed on a computer was found not to be valid as the deceased’s last Will.

It is very risky to write an informal Will on your computer or smartphone, as it may be difficult to prove after your death that you actually wrote it, and that you intended it to be your legal Will.

There have been several examples of the Court allowing informal Wills (including Wills stored electronically) to be used to obtain a Grant of Probate. In the Will of Mark Edwin Trethewey, the Court found that a Will stored on the deceased’s computer was valid, as the deceased had made it known that he intended it to be his legal Will. As contrasted with Mahlo v Hehir, the circumstances of each individual case are crucial, so it is unwise to make an electronic Will and assume it will be accepted by the Court.

The costs involved in engaging lawyers to take these types of matters to Court can run into tens of thousands. These can easily be avoided by having a lawyer draft a valid Will.

To make sure your Will is valid you should consult an estate planning solicitor. Please contact me if you would like advice or assistance with preparing your Will.

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Written by—

Chloe Kopilovic

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