LSB July 2018_Web

WILLS & ESTATES
included the fact that the language used
in the computer document was “clearly
language of testamentary intention”
and the deceased had provided that the
document was “signed” by him. The Court
ruled that the computer document was the
will of the deceased and granted probate
of the will in common form to the sole
executor.
DVD DOCUMENT
In The Estate of Wai Fun Chan, Deceased
[2015] NSWSC 1107, the Supreme Court
of New South Wales considered whether
a DVD recording was intended by the
deceased to be a codicil to a will.
The deceased had made a formal will
dated 6 March, 2012 prepared by her
solicitor in the English language, which
complied with the formal legislative
requirements. Shortly thereafter, she
made a DVD recording in Cantonese of
her additional testamentary intentions.
In the recording, the deceased expressed
her desire to amend her formal will and
provided for a special legacy for two of
her children.
The Court found that the deceased’s
oral statements coupled with the extrinsic
evidence as to the circumstances and
manner in which the DVD recording was
made left no doubt about her knowledge
and approval of the recorded dispositions
freely and voluntarily made. The
DVD recording satisfied the legislative
requirements for admission to probate
as a codicil as the deceased intended the
recording to form an alteration to her will.
In making this judgement, Judge Lindsay
noted that although this recording was
found to satisfy the requirements, the
making of these “video wills” places an
unnecessary burden on the administration
of the estate and greatly increases the
overall costs.
The South Australian Supreme Court
has been required to consider whether
a DVD recording was a document for
the purposes of Section 12(2). In Estate
of Wilden (Deceased) [2015] SASC 9, the
deceased stated on a DVD recording “…
this is …somewhat of an official last will
and testament as I don’t have a written
document anywhere at this stage. This
is just … a failsafe until such time as I
do get something like that done.” The
deceased stated in the recording that all his
belongings were to be shared between his
sister, her husband and her children.
As there is no definition of the term
“document” within the Act, Justice Gray
relied on the definition contained in the
Acts Interpretation Act 1915 (SA) which
states that the word “document” includes
“…any article or material from which
sounds, images or writings are capable
of being reproduced with or without
the aid of any other article or device.”
In the circumstances of this case, the
Court held that the DVD recording was a
“document” for the purposes of Section
12(2) and that the deceased intended for
the recording to constitute his last will. A
transcript of the recording was therefore
admitted to probate. However, as in
similar cases, it was noted in the judgment
that these electronic documents are not
considered desirable or intended as they
can lead to real uncertainty.
MOBILE PHONE DOCUMENT
In the recent case of Re Nichol; Nichol v
Nichol [2017] QSC 220, the Supreme Court
of Queensland considered whether an
unsent text message on a mobile phone
complied with the legislative requirements
and constituted a will. The deceased
created the text message on his mobile
phone prior to taking his own life. The
message read:
“Dave Nic you and Jack keep all that
I have house and superannuation,
put my ashes in the back garden
with Trish Julie will take her stuff
only she’s ok gone back to her ex
AGAIN I’m beaten . A bit of cash
behind TV and a bit in the bank
Cash card pin 3636
MRN190162Q
10/10/2016
My will”
The Court was firstly satisfied that
the text message was an electronic
document and the text message satisfied
the definition of document. Secondly,
the Court considered that the terms of
the text message were intended by the
deceased to represent how he wished his
property to be distributed upon his death
and therefore expressed his testamentary
intentions. In this case the Court held
that the deceased intended the unsent text
message to operate as his will. The Court
ordered that the execution requirements be
dispensed with and that the text message
be admitted to probate in solemn form.
REJECTION OF ELECTRONIC DOCUMENTS
The above cases reveal that in some
unique circumstances, informal wills can
be deemed as valid wills and admitted to
probate. However, there are numerous
cases in which informal will applications
have been rejected by the Court.
The Supreme Court of Queensland,
in Mahlo v Hehir [2011] QSC 243, was
not satisfied that a computer document
contained sufficient testamentary
intentions of the deceased. A significant
factor supporting this decision was that the
document was not signed by the deceased.
The Court accepted evidence that the
deceased knew the appropriate procedure
for preparing a formal will, she having
made a formal will with the assistance of a
solicitor only months earlier.
The Court places great emphasis on the
testamentary intentions of a deceased
person and whether that person intended
a document to constitute his or her last
will. This determination will be made on
the individual set of facts in each case and
is wholly at the discretion of the Court.
There is no guarantee that an electronic
document will be considered a valid will.
Furthermore, the task of proving
electronic documents as wills can
often be time consuming, expensive,
problematic and may lead to a heightened
risk of litigation. It also far exceeds the
costs of engaging a solicitor to prepare
a formal will. Consequently, the Courts
strongly encourage compliance with
the formal legislative requirements for
making a will. B
July 2018 THE BULLETIN 29