CAN AN ELECTRONIC DOCUMENT BE A WILL?
December 27, 2016
When a man killed his wife and then changed his will by creating a document on his laptop computer, the Supreme Court had to decide whether the document was a legal will that could be admitted to probate.
This decision raises interesting issues about how a will should be executed and whether courts should be taking a more contemporary view of electronic documents.
The South Australian man had been holidaying with his wife in Tasmania in February 2015. It is believed that following an argument whilst bushwalking, the man repeatedly hit his wife in the head with a rock and then left her lying face-down on the ground. She died from her injuries.
He returned to the caravan park where they had been staying and typed out a new will (the document) on his laptop computer. He had previously made a will in 2006, naming his two sons as the sole beneficiaries of his estate, even though he had been married to his wife since 2001.
The document said that his wife should receive a large share of his assets, with the remainder going to his sons. It also said that if his wife didn’t survive him, his estate should be divided between his sons and stepson.
The man put an electronic copy of his signature onto the document. He also emailed an unsigned version of the document to his accountant, whom he had named as an executor, asking for the accountant to witness the document. He copied the email to his sons and stepson (also executors).
The man then attempted to commit suicide on that day. He was found still alive, hospitalised and then taken into custody because his wife’s body had been found.
In June 2015, the man committed suicide while in prison. The police later found his laptop computer and the document.
The man’s sons applied to the Court for the document to be recognised as the man’s last will and testament and to be admitted to probate.
Requirements for a will
For a will to be recognised as legal, there are a number of strict requirements that must be met. For example, the testator (the person making the will) must:
- Demonstrate that they understand what they are doing.
- Be aged 18 years or more.
- Make sure the will is in writing.
- Ensure that the will is signed and witnessed according to legal requirements.
These requirements are necessary to ensure that a will isn’t fraudulent, or that the testator has not been put under undue pressure to make the will in a certain way.
When a will doesn’t follow these requirements, for example it is in electronic form and hasn’t been witnessed, real questions arise whether the will is legal and whether it can be admitted to probate.
What is probate?
Probate is the legal process of proving a will so that the Court can recognise it as legally valid. Once probate has been granted, the estate can be distributed in accordance with the testator’s wishes.
The Court’s decision
In this case, the Court had to consider a number of questions, including whether:
- The electronic document could be considered a “written” document.
- The document accurately expressed the testator’s wishes.
- The document could be recognised as a will, even though it was not properly signed and witnessed.
- It could be admitted to probate.
The Court looked at a number of cases and decided that electronic documents, even DVDs, could be legal documents. So the document on the computer was found to be a legal document.
The Court also found that where there is proof that the author of the document was the testator and the testator intended that the electronic document would be his will, then it should be recognised as his will. It found that the man had intended that the document would be his will.
It decided that the electronic signature was a true copy of the man’s actual signature and that he had put it on the document with the intention of giving it effect as his legal will.
Even though the document was not properly signed or witnessed, the Court was prepared to accept a print-out of the signed document and admit it to probate so that the estate could be distributed.
What does it mean?
When making a will, it is always the simplest and best option to see a lawyer to ensure that the will is properly drafted, signed and witnessed. This also usually the cheapest option as it limits the involvement of lawyers later on if there are questions about whether the will is valid.
However, even if the will is not properly executed and even if it is only in electronic form, this is not a barrier to having it recognised as legal. But taking it to Court to have it formally recognised is an expensive and uncertain process. A lawyer can help guide you through the process and give you advice about your prospects of success.
If you are concerned about whether your will is valid, or if you believe that you have an interest in the estate of someone else but have concerns about their will, you need to seek legal advice immediately to protect your interests.