iPhone Will Found Valid in Queensland Supreme Court
By Pamela Tieu 11/08/2017
A Will is an important and powerful legal document and, for this reason, it must satisfy certain formal requirements: it must be a written document, signed at the foot by the person making the Will (the testator) in the presence of two adult witnesses, and signed by those witnesses. The logic behind such strict requirements is to secure the authenticity of the testator’s intent and to protect testators against fraud and undue influence.
However, a document which fails to meet one or more of the abovementioned criteria will not necessarily always fail.
On 6 November 2013 Lyons J of the Queensland Supreme Court found that a document typed using the ‘Notes App’ on an iPhone was a valid Will, and granted probate to the person named as executor.
Mr Karter Yu was a young man studying in Australia as an international student, he was faced with intense personal problems and tragically committed suicide on 2 September 2011. Shortly before he died he created a series of documents on his iPhone. Majority of the documents consisted of final farewells however there was one particular document that was expressed to be his last Will which began with the words “This is my last Will and Testament”. Furthermore, the document stated Mr Karter Yu’s address, demonstrated an intention to appoint his brother Mr Jason Yu as the executor, as well as nominating an alternative; and also authorising the executor to deal with his (Mr Karter Yu) affairs in the event of his death.
Generally in dire circumstances such as the case above, it is unlikely for documents made in such a short period of time to satisfy the requirements outlined in section 10 of the Succession Act. However, failure to satisfy the requirements of section 10 of the Succession Act does not necessarily mean that the Will is permanently invalid.
His Honour Justice Peter Lyons in this case made an order to have the document be admitted to probate and that probate be granted to Mr Jason Yu.
Although the will was not signed or witnessed the court found it had been created on the iPhone by the man with the clear intention of it being legal and operative before he tragically ended his life moments later.
There were special factors in this decision and it does not mean every person can use a mobile phone to prepare a Do It Yourself will and expect it to be valid.
This case does not establish that any notes written on a mobile phone can be held to be a Will. There must be evidence of an intention for the document to be operative, and the document must be reasonably clear. However, this is a significant case and another example of the lenient approach taken by the courts to informal documents. It shows the way in which the courts are adapting their application of the law to the modern age of technology and paves the way for other electronic documents, created in the absence of witnesses, to be deemed as valid and binding Wills.
However, due to the absence of a formal Will, Mr Karter Yu executor was put to great legal expenses. We would not recommend any person to write your own informal will. We have seen many unintended consequences with a ‘home will kits’ where a wrong word in the wrong place completely changes the intention of the will. Therefore, our view is that any person intending to have a legally valid binding Will should consult their legal adviser to avoid any errors and their intention not being carried through after death.
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