In most cases for a Will to be valid in Australia it is required to be a written document that is signed by the testator in the presence of two or more witnesses. While it is always preferable to have a Will constructed in this way, the legislation that exists in Queensland does allow for the courts to dispense with these formal requirements in certain circumstances and admit what is termed an ‘informal will’.
The courts may exercise their powers to do this where:
- There is a ‘document’;
- which purports to state the testamentary intentions of a deceased person; and
- the court is satisfied that the person intended the document to form the person’s will.
In considering whether these conditions exist the Court will have regard to the way in which the ‘document’ was executed, as well as other evidence that gives weight to the intention of the person.
A recent case of an informal Will being admitted by the court occurred in the matter of Re Yu[2013] QSC 322. In this case a young man took his own life in the midst of an intense personal crisis. Before doing so he wrote various farewell letters in the Notes app on his iPhone, as well as a Will.
The brother of the deceased was named as executor of the Will left on the iPhone and he applied to the Supreme Court of Queensland for the Will to be admitted to probate.
In considering whether to admit the Will the Court referred to the elements outlined above and found that the Will on the iPhone could be considered a ‘document’ as defined in the relevant legislation. Upon examining its contents the Court held that it did in fact set out the testamentary intentions of the deceased and contained instructions for the disposal of his estate and was written at a time when he was considering his imminent death.
The Court was also satisfied that the third element was present in this case as the wording used by the deceased in the Will’s construction was such that it was clear that the deceased intended for it to be his legal Will.
With each of the elements satisfied the court in this case did admit the Will, even though it was written in an App on an iPhone and had no witnesses. This decision illustrated the court’s willingness to accept informal Wills constructed in an unorthodox manner.
It remains though at the discretion of the Court on a case-by-case basis as to whether to admit such a Will or not.