April 12, 2018

It has long been established that for a will to be valid it must be in writing and signed by the person making the will[1]. However, paper is no longer the only medium by which someone may make a will. All Australian States and Territories have enacted legislation that allows the court to dispense of the formal requirements of a will if the court is satisfied that it was intended that the document would form the person’s will[2].

The Queensland Supreme Court has declared that a video recording on a telephone was a woman’s final will. The video of the woman explaining what she wanted to happen with her assets after death was recorded on a phone.

Although the video was successfully admitted to probate, Justice Martin Burns was quick to dissuade others from doing the same.

“No one should be encouraged by this, or other decisions of the court, to freely embark on making wills other than with the accordance of formal the requirements of the Act [sic],” he said.

In this case, Ms Demowbray declined the offer of a private lawyer to attend hospital to draft the will on her behalf.

She did so because she did not want to incur the cost of that exercise.

But with great respect to Ms Demowbray, that is a short-sighted economy ...

Although Ms Demowbray has avoided the cost of a private lawyer attending the hospital … perhaps a cost measured in a couple of hundred dollars, her estate will be depleted by the much more significant cost that this application will incur.” [3]

Other notable cases in which “informal wills” have been accepted have involved:

  • a series of notes on an iPhone[4];
  • an unsent text message on a mobile phone[5];

  • a will recorded on a DVD[6]; and

  • a computer file[7].

Although these cases were successful, the outcome of cases of this kind may differ depending on the evidence. The Court must be satisfied that the person intended the ‘document’ to form their will.

Some take home messages from this recent “informal will” case include:

  • When a will is not made in accordance with the formal requirements, an application will need to be made to the Court for the “will” to be found valid. This will involve significant cost on behalf of the estate and delay in the administration of the estate. It may also involve potential disputes between family members about the effect of that informal document.

  • While it might take a few hours and involve a cost to properly draft your will, the costs of not doing it right are significant.  It can take weeks or months to prepare an application to court to have a document, not created as a formal will, upheld to put your wishes into effect.  The financial costs will easily be tens of thousands of dollars.  These costs and delays add to the emotional turmoil of losing a loved one.

  • Be aware that “wills” can take a variety of forms. Therefore, proper searches should be undertaken of a deceased person’s computer, mobile telephone and other devices for documents of a testamentary nature.

If you would like assistance with estate planning or other estate issues, please contact the McInnes Wilson Lawyers Estate Law Team.

 


[1]     Succession Act 1981 s 10.
[2]     Succession Act 1981 (Qld) s 18, Wills Act 1936 (SA) s 12(2), Succession Act 2006 (NSW) s 8, Wills Act 1997 (Vic) s 9, Wills Act 1970 (WA) s 32, Wills Act 2008 (Tas) s 10, Wills Act 1968 (ACT) s 11A and Wills Act (NT) s 10.
[3]     Justice Burns as quoted by Alexandria Utting, ‘Queensland court rules dying woman’s phone video will legal’, Courier Mail, 28 March 2018 - http://www.couriermail.com.au/news/queensland/crime-and-justice/queensland-court-rules-dying-womans-phone-video-will-legal/news-story/f810925f3e36efae3efbca29eb44a490
[4]     Re Yu [2013] QSC 322.
5]     Nichol v Nichol [2017] QSC 220.
[6]     Mellino v Wnuk [2013] QSC 336
[7]     Yazbek v Yazbek [2012] NSWSC 594.