Wills, Estates & Estate Litigation | The Modern Will - A changing landscape

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Insights Paper | The Modern Will - A changing landscape

September 2020

At a glance: 

• Courts have been reluctant to recognise a person’s Will that does not accord with the legislation relating to Wills in that jurisdiction. 
• Due to advancements in technology, in more recent years, certain documents (both hard copy and electronic) have been recognized as an “informal Will” if the Courts were satisfied that a document expressed the intentions of the person, and that person intended the document to constitute their Will.
• These documents however are vulnerable to challenge, reducing the potential size of the estate.

Traditionally, the Courts have been reluctant to recognise a person’s Will that does not accord with the legislation relating to Wills in that jurisdiction.  Section 8 of the Wills Act 1936 (SA) (the Act) prescribes that a Will must be in writing and executed in the following matter:

• the witnesses must attest the signature of the testator and sign the Will; and
• the signature of the testator must be made in the presence of two or more witnesses present at the same time;
• it must appear on the fact of the Will that the testator intended to give effect to the document as a Will;
• it must be signed by the testator (or by some directed by the testator);
• the signatures of the witnesses must be made or acknowledged in the presence of the testator.

Notwithstanding the above, and largely due to the advancements of technology, in more recent years the Courts (including Australian Courts) have been willing to abandon tradition and recognise certain documents (both hard copy and electronic) as an “informal Will” if satisfied that a document expresses the testamentary intentions of a deceased person and the deceased person intended the document to constitute his or her Will.¹

Examples of informal Wills approved by the Court

• In 1948 a farmer in Canada who was trapped under a tractor, used a pocket knife to scratch into the tractor the words “In case I die in this mess, I leave all to the wife – Cecil George Harris”.²  The engraving was found to be a valid holographic last Will and testament.
• In 2013 the Queensland Supreme Court held that a Will typed out in an application on an iPhone constituted a valid Will,³  because the deceased had written “This is the last Will and testament” with his name and address and proceeded to appoint an executor. The document on the iPhone also contained the name of the deceased at the end of the document, where his usual signature would have appeared.
• Two encrypted USB sticks which were last accessed on 13 May 2012, just prior to the deceased undertaking risky heart surgery on 10 July 2012, were found to contain valid Wills.⁴  The Court determined that the document exhibited the general language found in a Will, together with the deceased’s name and the date.
• A video made by a woman recording certain wishes and intentions as an amendment to a pre-existing and formally drafted Will that was signed just two days earlier, was found to constitute a valid codicil (amendment) to her original Will.⁵
• In South Australia an informal Will together with an iPhone containing an electronic file of a video and audio recording of the deceased, found next to the deceased in a hotel room, were determined by the Court to intentionally operate as the deceased’s last Will and testament.⁶
• A draft unsent text message written by a man who took his life shortly after drafting the message was found to be a valid Will.⁷ The text which contained the words “My Will” which purported to exclude his current wife (who had returned to her former partner) and gifted cash, superannuation and his house to his brother and nephew.

Cecil George Harris’s Will etched into the tractor’s fender. Source: https://words.usask.ca/archived_ocn/09-jan-23/see_what_we_found.php

Issues with informal Wills

Notwithstanding that a Court may have the power to approve a person’s informal Will, such documents are vulnerable to challenge, and there is no guarantee that such documents will be approved by a Court.  Proving an informal Will is also a costly exercise which is likely to reduce the size of the estate and therefore impact on the ultimate benefit of those persons intended to benefit.  There is also a human impact in that further Court proceedings are emotionally taxing for those who left behind.

Informal Wills are never an adequate substitute for a properly prepared Will and the importance of seeking legal specialist advice cannot be overstated.  While most people don’t like to think about their mortality, and fewer enjoy paperwork, the preparation of a valid Will is vital in ensuring that a person’s true testamentary intentions and wishes are upheld. A valid Will can also relieve the pressure on loved ones during, what is already, a difficult time.

Get in touch

Our Wills and Estate Planning team can assist with expert succession planning advice and Will drafting to ensure assets are distributed according to a person’s intentions. Our Estate Litigation team advises in the circumstances where a person has left documents that do not meet the requirements of the Act, or there is a challenge against that document, or to the estate itself.

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¹ Section 12 of the Act permits the Court to dispense of the formalities required by section 8 of the Act.
² The fender was later removed and submitted to the Canadian court as a valid holographic Last Will and Testament.
   See: https://words.usask.ca/archived_ocn/09-jan-23/see_what_we_found.php
³ Re Yu [2013] QSC 322 at [9].
⁴ Estate of Roger Christopher Currie, late of Balmain [2015] NSWSC 1098 at [50], [51].
⁵ Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 at [53] to [57].
⁶ In the Estate of Rohan Alexander Russell (Deceased) [2016] SASC 56 at [17] to [19].
⁷ Re Nichol [2017] QSC 220 at [67].