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You've got an iphone - what about an iWill?

Is there any limit to what can be done on a smartphone? It is starting to seem the answer to that may be no, as a Court in Australia has upheld a Will stored on a testator’s iphone.

In most cases Australia has similar provisions to England and Wales when it comes to the formalities required for the execution of a Will. For example it must be signed by the testator in the presence of two witnesses both present at the same time.

However where the Australian Courts differ from the Courts in thi country is that they recognise that there are circumstances in which it is not practical to meet the correct formalities for execution. It is possible in most Australian jurisdictions to make an informal will as long as the document states the person’s testamentary intentions (i.e. it states that it is intended to operate as a will) and the Court is satisfied that was indeed the case then it may be upheld. This is not the case in England and Wales where only servicemen and women on active service are able to make Wills that dispense with the usual formalities.

The case of the iphone Will concerned a testator who used the Notes application on his phone to write what he said was to be his final Will. He also left some notes for family and friends saying goodbye. He then took his own life.

The deceased’s brother made an application to the Supreme Court of Queensland which decided in the case of Re:Yu (2013) that the Will could stand. The case turned on three issues:

(1)Whether the Will was a document. (2)Whether the Will set out the deceased’s intentions and (3) Whether the testator had intended the document to operate as a Will.

The Court accepted that the Will was valid on all three counts and so it stood. This is not the first case of its kind in Australia. In 2012 a Will saved on a computer was held to be valid and in 2013 a Will recorded on a webcam was accepted. 

While it is highly unlikely an electronic Will would be upheld in this country under current legislation it is possible that electronic Wills may be valid in the future. The government had proposed to make it possible to make Lasting Powers of Attorney online, although that has been put on hold for now, and documents can be signed electronically, so it may only be a matter of time.