A legally valid iPhone will

February 28, 2014

The recent case of Re: Yu [2013] QSC 322 highlights an interesting development for Australian succession law. In their ruling, the Supreme Court of Queensland appears to be willing to apply well established legal principles to new technologies. The case raises interesting questions for local practitioners who are used to adhering the formalities of executing valid wills under the Wills and Administration Proceedings (Northern Ireland) Order 1994 (“the 1994 Order”).

A young man, faced with an intense personal crisis, used the notes app on his iPhone to type out various farewell letters to his friends and family, as well as his will, shortly before taking his own life. His brother, the executor named under the iPhone will, applied to the Supreme Court of Queensland for the will to be admitted to probate.

In general, a will in Australia, as in Northern Ireland under the 1994 Order, is deemed to be valid if it is in writing and has been signed by the testator in the presence of two or more witnesses. However, the legislation in Australia allows the courts to exercise their powers to dispense with these formalities when admitting informal wills to probate if the three elements below are satisfied.

 There is a „document‟: Using the legislative definitions of the term, the court held that the iPhone will did constitute a document;

 It purports to state the testamentary intentions of the deceased: The iPhone will dealt with the whole of the deceased‟s property and nominated not only an executor but also, an alternative person, who was appointed to deal with his affairs in the event of his death. All of this was done at a time when the Deceased was clearly contemplating his imminent death and the court held that this set out his testamentary intentions;

 The deceased intended the document to form his will: The court held that the wording of the iPhone will, created shortly after the farewell notes, was created by a man with a clear intention of it being a legal and operative will to dispose of his assets upon his death.

The judge noted that he did not think it was a good idea that wills were routinely written on a mobile phone however this was not the first time that an Australian court admitted a will saved on various forms of electronic media. In 2012, the Supreme Court of New South Wales admitted a will saved as a Word document on a person‟s laptop and in 2013, the Supreme Court of Victoria admitted a will recorded by a person using a webcam.

The development in Re; Yu perhaps should not be such a revelation to this jurisdiction as exceptions to the formal requirements laid down by the 1994 Order already apply for soldiers and seamen in active service. Under the Wills Act 1837, they are known as privileged testators and the same formalities can be dispensed with when making their wills. Nonetheless, it is apparent that as the use of smartphones and electronic media increases worldwide, courts in every jurisdiction are likely to encounter an increasing number of informal wills.

Please note; the content of this article is for information purposes only and further advice should be sought from a professional legal advisor before any action is taken.

Please contact Cleaver Fulton Rankin on 028 9027 3141 or alternatively visit www.cfrlaw.co.uk