Keeping up with Technology - Wills

In a decision delivered by Justice Stanley of the Supreme Court of South Australia on 2 November 2016 (In the estate of Robin Michael, deceased), the Judge found that a “document” found on the hard drive of a laptop computer to be a document which was capable of being admitted to probate under the provisions in the Wills Act 1936 (SA) (“Act”), namely section 12(2) of the Act, which allows a document to be admitted to probate even though it has not been executed in accordance with the formalities required by the Act.

Stated briefly, the facts of this case are that the deceased killed his wife whilst they were on holiday in Tasmania in February 2015.  The deceased then returned to their caravan and typed a “document” on his laptop computer.  The deceased then inserted a digital copy of his signature on that “document”.

Later that day, the deceased attempted to commit suicide, but he survived.  Subsequently, he was taken into custody.  Later, and whilst still in custody, he committed suicide.

At issue was whether the computer file was a “document” within the meaning of section 12(2) of the Act, and whether it was capable of being admitted to probate.

In his judgment, Justice Stanley found:-

  1. The computer file containing the document entitled “Last Will and Testament” was a “document” within the terms of section 12(2) of the Act.
  2. The “document” contained on the computer file expressed the testamentary intentions of the deceased and the deceased intended the document to constitute his will.
  3. The facsimile signature found on the computer file document closely resembled the signature of the deceased and the Judge further determined that the computer signature was affixed to the computer document by the deceased as his signature and that he did so with the intention of giving effect to the document as his will.

The Judge was prepared to admit to probate as the last will and testament of the deceased a printout of the document which was prepared by the deceased and described by him as his “Last Will and Testament” which was found on the hard drive of his laptop computer.

This decision exhibits a contemporary approach to the recognition that electronic documents are capable of constituting testamentary documents for the purposes of the Act.

In so doing, the Court relied on evidence establishing who was the author of the electronic document and that the deceased intended the document to be his will.

Practical Tip — whilst Courts have, over the years, exhibited a tendency to adopt a liberal and commonsense approach to admit informal documents to probate provided that there is evidence to establish that the document expressed the testamentary intentions of the deceased, and that the deceased personally intended the document to constitute his or her will, willmakers should comply with the requirements set out in the Act to prepare a valid will, rather than relying upon remedial provisions in the Act to allow the document to be admitted to probate.

Adhering to the requirements of writing and executing the will as set out in the Act will avoid the trouble and expense of having to make an application to the Court for an informal document to be admitted to probate.

Charles Beresford

1 February 2018