Publications / Private Client
In a recent case of Re: Yu  QSC 322, the Supreme Court of Queensland considered whether a record typed into the ‘Notes’ app of an iPhone was a valid will.
Shortly before taking his own life, the deceased created a series of records on his iPhone. A number of them were final messages. One of them was titled ‘This is the last Will and Testament ...’. In the record, the deceased named an executor and provided for his property to be gifted away. The named executor applied to the court seeking that the iPhone record be proved as a will.
Formal requirements of a will
The iPhone record did not meet the formal requirements of a will required by section 10 Succession Act 1981 (Qld) (the Act). The formal requirements as set out in the Act are that the will must:
- be in writing
- be signed by the will-maker (or someone else in the presence of an at the direction of the will-maker), and
- have two independent persons who are present at the same time to witness the will-maker’s signature.
A will which does not meet the formal requirements (sometimes referred to as an informal will) may be proved as a valid will provided that certain conditions are met. The conditions are found in section 18 of the Act and were summarised in this judgment.
First there must be a document in existence.
The definition of document is found in section 36 Acts Interpretation Act 1954 (Qld) and is in broad terms. Basically, it includes any paper of material on which there is writing or marks, and ‘any disk, tape or other article or material from which sounds, images, writing or marks are capable of being produced or reproduced (with or without the aid of another article or device).’
The judge considered a previous case of Yazbek in New South Wales in which a Microsoft Word document created on a laptop computer was found to meet the definition of document.1 With reference to that case, and the cases cited in it, the judge was satisfied the record on the iPhone was of a similar nature to the Word document and therefore, it met the definition of document.
The next condition to be considered is whether the document purports to state the testamentary intentions of the deceased. In other words, the document must deal with the distribution of the deceased’s property on their death.
The judge considered it relevant that the document:
- dealt with the whole of the deceased’s property
- was created by the deceased when was contemplating his imminent death (which was evidenced by the fact that the deceased had also created numerous final messages in the Notes app around the same time)
- appointed an executor as well as nominated a substitute executor, and
- the document authorised the executor to deal with the deceased’s affairs in the event of his death.
As a result, the judge gained the general impression that the document set out the testamentary intentions of the deceased.
Finally, for a valid will to be in existence, the deceased must have intended the document to form his will.
The document must be more than a mere letter or memorandum of wishes. The deceased must intend it to be a legally binding document which disposes of their property on death.
The judge was satisfied that the deceased held the requisite intention based on the terms of the document alone. It does not appear from the judgment that His Honour considered any external evidence as to the deceased’s intention, such as, evidence that the deceased told someone he had created a will and it could be located on his electronic device (as occurred in the case of Yazbek referred to above). The relevant considerations were:
- the document commenced with the words ‘This is the last will and testament ...’
- the deceased formally identified himself and his address
- the document clearly appointed an executor
- the deceased typed his name at the end of the document in a place where a signature would appear on a paper document and then typed the date followed by his address again, and
- the document was created shortly after a number of final messages were created.
As the three conditions were satisfied, the application was successful and the court issued a grant of probate of the iPhone document to the executor named in it.
While the circumstances of this case makes for very interesting reading, a will should always, where possible, meet the formal requirements set out above. The type of application referred to above involves cost, delay and uncertainty as to the outcome.
While the applicant in this case was successful, there are many cases involving informal wills where applicants have not been successful.
A will that meets the formal requirements is far more likely to result in the will being administered in an efficient way.
1: Alan Yazbek V Ghosn Yazbek & Anor  NSWSC 594
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.