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:
- Does a document exist?
- Does the document show the testamentary intentions – or wishes – of the deceased?
- 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:
- The Will commenced with the words “This is the last Will and Testament” and identified the deceased by full name and address;
- The Will dealt with the whole of the deceased’s property;
- The deceased appointed his brother as Executor in his Will; and
- 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.
The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.