Dawn of the iPhone will

Saturday, 01 February 2014

In November 2013, the Supreme Court of Queensland held, in the matter of Re: Yu,1  that an electronic will saved onto a smartphone should be admitted to probate.

Across the various jurisdictions in Australia, a will is generally not valid unless it is in writing and signed by the testator in the presence of two or more witnesses (with those witnesses subscribing the will in the presence of the testator).2

However, the legislation in Australia gives power to the courts to dispense with the formal requirements for execution of a will.3  The courts may exercise their powers to admit informal wills where:

  • there is a ‘document’;
  • which purports to state the testamentary intentions of a deceased person; and
  • the court is satisfied that the person intended the document to form the person’s will.

In considering whether to admit an informal will, Australian courts generally have regard to evidence on the way the document was executed and any evidence of the person’s testamentary intentions (including evidence of statements made by the person).4  This has led to some interesting decisions in recent times, particularly where persons have purported to document their wills electronically.

The iPhone will

In Re: Yu, a young man, alone and suffering an intense personal crisis, tapped various farewell letters to friends and family, followed by his will, on the Notes app of his iPhone. Not long after, he took his own life.

The deceased’s brother, executor under the iPhone will, applied to the Supreme Court of Queensland for the will to be admitted to probate, wherein the court applied the elements referred to above.

The court was satisfied the iPhone will constituted a ‘document’ based on legislative definitions of the term.5  As to the second element, the court held it was clear from an examination of the document that the will set out the person’s testamentary intentions as it dealt with the whole of the deceased’s property and provided for its distribution at a time when the deceased was plainly contemplating his imminent death and where the document nominated an executor (and an alternative) who was authorised to deal with the deceased’s affairs in the event of his death. As to the third element, the court found the wording used in the will, where it was created shortly after a number of farewell notes, evinced the person’s intention that the iPhone be legally operative to dispose of his assets upon his death. Accordingly, the court admitted the will to probate.

While this is the first time we have seen probate being granted for a will saved on a smartphone, Australian courts have previously granted probate for wills saved on other forms of electronic media. In 2013, the Supreme Court of Victoria admitted to probate a will recorded by a person using a webcam.6  Further, the Supreme Court of New South Wales in 2012 admitted to probate a will saved as a Word document on a person’s laptop computer.7

As more people make use of smartphones (and other forms of electronic media), the courts are likely to encounter an increasing number of informal wills in years to come. The landmark decision in Re: Yu heralds a novel development for succession law in Australia and reflects the courts’ willingness to apply well established legal principles to new technologies. However, it remains to be seen whether one day in the future the laws surrounding the valid execution of wills might be changed to account for electronic wills.

  • 1[2013] QSC 322
  • 2Succession Act 2006 (NSW), s6; Wills Act 1997 (Vic), s7; Succession Act 1981 (Qld), s10; Wills Act 2008 (Tas), s8
  • 3Succession Act 2006 (NSW), s8; Succession Act 1981 (Qld), s18; Wills Act 1936 (SA), s12; Wills Act 1970 (WA), s32; Wills Act 2008 (Tas), s10
  • 4Succession Act 2006 (NSW), Wills Act 1997 (Vic), s9; Succession Act 1981 (Qld), s18; Wills Act 1970 (WA), s32; Wills Act 2008 (Tas), s10
  • 5Succession Act 1981 (Qld), s5 and Acts Interpretation Act 1954 (Cth), s36
  • 6Estate of Sheron Jude Ladduhetti (unreported, Supreme Court of Victoria, 20 September 2013)
  • 7Alan Yazbek v Ghosn Yazbek and another [2012] NSWSC 594
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Charlie Young and Yvonne O’Byrne

Charlie Young TEP is a Senior Associate and Yvonne O’Byrne is a Solicitor at Bennett & Philp Lawyers

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