Can a Willmaker ‘phone it in’?
Kimberley Martin reflects on the emerging trend of using informal digital documents in Willmaking, with a particular focus on Australia
What is the issue? The emerging trend of informal digital Wills being admitted to probate is creating the incorrect impression that an admissible Will can be prepared in a simple digital form.
What does it mean for me? Advances in, and greater access to, technology will likely result in an increase in the use of electronic media in estate planning. Practitioners need to be aware of informal Wills, and any legislation regulating them in their practising jurisdiction.
What can I take away? There is a need for carefully considered legislation, policy and technology to regulate the making and recognition of digital Wills.
Until relatively recently, the idea of electronic media, including text messages, unprinted documents and video recordings, being admitted to probate was absurd. This notion has changed. An emerging trend in Australia and a number of other jurisdictions towards the admissibility of informal ‘do-it-yourself’ digital Wills to probate has prompted discussion about the introduction of digital Will legislation. The traditional formalities of Willmaking must now adapt in the ever-evolving technological age.
Digital and informal Wills
Sensationalist headlines like ‘Unsent Text Message with a Smiley Face Counted as a Will, Court Rules’ (1) and ‘Will by Video Ruled Valid in Supreme Court After Challenge by Estranged Wife’ (2) can create the impression that digital Wills represent a simple means of expressing testamentary intentions without the expense or trouble of retaining a lawyer. However, this is far from correct.
Although academics, practitioners and legislative bodies around the world are engaging in formal consultations about legislation and policies regulating digital Wills, from the UK’s Law Commission,(3) to the American Bar Association,(4) in most jurisdictions the law still requires that a Will be in writing, signed by the Willmaker and witnessed by at least two witnesses.
While dispensing powers exist in a number of jurisdictions, including all Australian states,(5) that enable courts to admit informal Wills to probate, this is far from a straightforward process. Where there is a digital ‘document’ that could be permissible as an informal Will, and the result of its recognition is a different outcome to the status quo, whether that be an existing Will or the application of the rules of intestacy, there will likely be two or more interested, possibly conflicting, parties: those who benefit (or benefit more) under the informal Will and those who benefit (or benefit more) under the status quo. Where this occurs, there is a high likelihood of a dispute, which may ultimately lead to litigation.
Satisfying the legislative and judicial requirements to prove a digital document as a Will is a difficult, stressful, time-consuming and extremely costly exercise, with a court considering each case on its own unique facts and circumstances. This remains so even where the parties negotiate an out-of-court settlement.
The term ‘informal Will’ refers to a document of a testamentary nature that does not satisfy the formal legislative requirements for the execution of a Will. The key questions/issues that should be considered, and will be examined by a court when determining whether an informal Will should be recognised, include:
- Whether there is a ‘document’: What constitutes a ‘document’ for the purposes of Willmaking, and whether that definition will include forms of electronic media, varies between jurisdictions. In Tasmania, for example, the term ‘document’ includes ‘a disc, tape, or other article from which sounds, images, writing, or messages are capable of being reproduced’.(6)
- Whether the document records the testamentary intentions of the deceased: This must be legible/audible, unequivocal and clearly intended to operate as a disposition of property in contemplation of death (i.e. not during lifetime). Courts may also consider consistent statements made by the Willmaker to third parties as collateral evidence of their testamentary intention.
- Whether, on the balance of probabilities,(7) the evidence establishes that the deceased wanted the document to be their final Will: The Willmaker need not know the formalities for making a Will, and may not be actively making a Will, but clarity and finality of intention is essential. A recording of wishes, letter of instruction and draft document are unlikely to be accepted: Boddice J in Lindsay v McGrath(8) said that documents ‘which contain only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions, or which on the evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible provision, will not suffice’.
- Whether the deceased had testamentary capacity at the time of creating the document: In informal Will cases, the normal presumption of testamentary capacity does not apply, and the onus of proving testamentary capacity lies on the party seeking to prove the informal Will.(9)
Recent Australian cases
Australia is at the forefront of the shift towards the recognition of digital Wills, with increasing numbers of cases being ruled in favour of recognising various electronic media as informal Wills. The following are some examples from rulings between 2001 and 2018 that reflect this trend.
In Radford v White,(10) a video recording (the Recording), in which the deceased jokingly expressed his wishes about the distribution of his estate, was admitted to probate. In this case, the court held that: the Recording constituted a document; despite its jovial tone, based on language there was no question that the Recording purported to state the deceased’s testamentary intentions; the deceased clearly intended the Recording to operate as his last Will; despite evidence about the deceased’s capacity at the date of his death, the deceased had the requisite capacity on the day he made the Recording.
Similarly, in In the Estate of Wilden (Deceased)(11) and Re Estate of Wai Fun Chan, Deceased,(12)DVDs containing a video recording of the deceased were admitted to probate.
In Nichol v Nichol,(13) an unsent SMS/text message (the Text), which the deceased purportedly typed on his phone before taking his own life, was admitted to probate. In this case, the court held that: the Text satisfied the definition of a document; forensic evidence supported the proposition that the deceased had created it on the date of his death; the Text, which contained the words ‘My Will’, recorded the deceased’s testamentary intentions; the deceased’s failure to send the Text was part of his intention not to alert his brother of his suicide plans, rather than a lack of intention for the Text to operate as his Will.
Unprinted digital documents
The case of Re Yu(14) concerned a document created in a word processing program (the Document) saved on the deceased’s computer that the deceased purportedly created at a time when he was contemplating his imminent death. The Document did not appear to have ever been printed. The court held that the Document: satisfied the definition of a document; recorded the deceased’s testamentary intentions; formally identified the deceased; appointed an executor; authorised the executor to deal with the deceased’s affairs in the event of his death; and purported to dispose of the whole of the deceased’s property. The deceased had typed his name at the end of the Document where a signature would normally appear on a paper document, followed by the date and his address.
Other cases that have considered whether typed digital documents could be recognised as informal Wills include The Estate of Roger Christopher Currie(15) and Alan Yazbek v Ghosen Yazbek & Anor,(16)16 where the Supreme Court of New South Wales admitted to probate digital word processor documents titled ‘MY_WILL.DOC’ and ‘Will.doc’, respectively.
A brief review of the apparent success of informal documents being admitted to probate in the above cases masks the complexity, expense and time taken to resolve the litigation. Although the dispensing powers are important and useful tools, they are only intended as a ‘back-up’ mechanism to ensure that a deceased person’s wishes and intentions are carried out where there is no valid Will reflecting their most recent testamentary intention. These provisions should not be relied on, either by practitioners or clients, to support the use of digital Wills as a primary and conventional form of estate planning.
That said, it seems inevitable that use of, and the trend for recognising, digital documents will continue, and practitioners should be prepared for this. Some key tips for estate practitioners dealing with digital Wills are:
- to become familiar with the dispensing powers and case law about informal Wills in the relevant jurisdiction;
- when taking instructions in deceased estate matters, discuss the potential existence of informal digital Wills with clients;
- exercise caution in using online estate planning resources without full investigation about their compliance with the laws of the relevant jurisdiction; and
- ensure clients (and potential clients) understand the pitfalls of informal ‘do-it-yourself’ estate planning, and the importance of obtaining professional assistance that gives proper consideration to all the issues, including the importance of language, default provisions, the application of family provision legislation and the benefits of proper tax and asset-protection planning.
Lastly, the author encourages practitioners in every jurisdiction to contribute to law reform discussions about digital Wills. It is vital that carefully considered legislation, policy and technology are implemented for the use of digital Wills, and this should balance the contemporary desire for expediency against consumer protection issues, including the risk of fraud, undue influence and elder abuse.
- Law Commission, Making a Will, chapter 6.
- American Bar Association, ‘The Future of Electronic Wills’.
- And also New Zealand, South Africa, some US states and some Canadian provinces.
- s.24(bb) Acts Interpretation Act 1931 (Tasmania)
- In Tasmania, the Wills Act 2008 (Tasmania) requires that the court be satisfied ‘beyond reasonable doubt’ that the deceased intended the document to constitute their Will or an alteration or revocation of their Will.
-  2 Qd R 160 at .
- See Lindsay v McGrath  2 Qd R 160 at  per Boddice J with whom Gotterson JA agreed, Hatsatouris v Hatsatouris  NSWCA 408 at , and Konui v Tasi & Anor  QSC 74 at .
-  QSC 306.
-  SASC 9.
-  NSWSC 1107.
-  QSC 220.
-  QSC 322.
-  NSWSC 1098.
-  NSWSC 594.