LSB July 2018_Web

WILLS & ESTATES
DIY Electronic Wills: The New Normal?
LAUREN PETCH, ASSOCIATE, PIPER ALDERMAN
In an ever-advancing technological age,
there is an increasing trend of people
utilising digital means to record post death
directions and wishes. It is now at the
discretion of the courts to decide on the
admissibility of these informal digitally
recorded documents and whether or not
these documents can constitute a “will”.
In South Australia, the validity of a
will is determined by the compliance of
particular criteria set out in the Wills Act
1936 (SA) (the Act). Section 8 of the Act
provides that in order for a will to be valid
it must:
• be in writing;
• be signed by the testator;
• appear on the face of the will that the
testator intended to give effect to the
will by signing it;
• be witnessed in the presence of two
witnesses present at the same time; and
• be signed by the two witnesses in the
presence of the testator.
If the above requirements are not
satisfied then the document purporting
to be a will would not be legally valid.
However, in certain circumstances, the
Court has used its discretion to determine
that although a document has not met the
criteria of Section 8 of the Act, it can in
fact still constitute a valid will.
SECTION 12(2) APPLICATIONS
An informal will application can be
brought before the Court by way of
Section 12(2) of the Act. An application
of this kind will be successful only if
the Court is satisfied that a document
specifically expresses testamentary
intentions of the deceased and that such
document was intended by the deceased to
constitute his or her last will.
An applicant will be required to provide
evidence that the document was more than
a list of instructions or memorandum of
wishes and that the deceased intended the
document to be final and not merely a
working draft.
In more recent times, where the use of
computers, mobile phones and digital
devices is largely commonplace, the Court
has been required to determine what
constitutes the term “document” for the
purposes of Section 12(2). This term is
not defined under the Act and has led
to a number of Court rulings relating to
electronic documents purporting to be
wills.
COMPUTER DOCUMENT
In The Estate of Roger Christopher Currie,
late of Balmain [2015] NSWSC 1098, the
Supreme Court of New South Wales
considered whether a computer document
created by the deceased was intended to
operate as his will.
The electronic document was found on
a USB stick. The document was a typed
My last
will &
testament
document that began, “This is the last
will and testament of Roger Christopher
Currie...”. It appointed a friend of the
deceased as the sole executor, made several
detailed specific bequests to friends and
relatives and gave the residuary estate
equally between each beneficiary named
in the document. The document stated
that it was “signed” by the deceased on
1 April, 2009. Notably, the deceased also
stated that he was making no provision for
his siblings and nephew as they had been
adequately provided for by the estate of
his late parents. The document was not
printed and no document in paper form
was discovered.
In the circumstances, the Court was
satisfied that the deceased intended the
computer document to be his last will.
Factors that supported this decision
28 THE BULLETIN July 2018