01 September 2015
The digital age and computer-generated wills - a word of caution!
The digital age has already impacted on our day-to-day lives and will continue to do so. There is a strong push towards less paper and more information being stored on digital devices. The area of will preparation is not excluded – computer generated wills and applications that assist with will preparation are being aggressively promoted. However, a word of caution! Two recent NSW Supreme Court decisions highlight problems with digital wills.
The Computer Document
The case of The Estate of Roger Christopher Currie  NSWSC 1098 involved a document found on the deceased’s computer after his death (the Computer Document). Two USB sticks found in the draw in the deceased’s home revealed the Computer Document (after eventually being able to get past the deceased’s password). An expert computer forensic analysis established that the Computer Document was last modified on 1 April 2009 and was last accessed on 13 May 2012 – just prior to the deceased’s risky heart surgery on 10 July 2012. The deceased died between 25 and 26 July 2012.
The Computer Document used the general language of a will and ended with the deceased’s name and the date. The case involved contested legal proceedings as to whether the Computer Document should be admitted to probate as the deceased’s last will under section 8 of the Succession Act 2006 (NSW) even though it didn’t satisfy the legal requirements for the execution of a will. Section 8 allows the Supreme Court to dispense with the legal requirements for the execution of a will and admit a document to probate if the Court is satisfied that the deceased intended the document to form his will. The Court accepted the evidence of a cousin, that the deceased said to her prior to the surgery for his heart condition:
“If anything happens to me I have made a will. It’s encrypted.”
The Court was satisfied that the deceased intended the Computer Document to form his will and it was admitted to probate.
The case of Re Estate of Wai Fun Chan, Deceased  NSWSC 1107 involved a digital video disc recording of an oral statement of the testamentary intentions of the deceased (the DVD).
Wai Fun Chan, a widow, aged 85 years, died leaving a will dated 6 March 2012 and the DVD. The DVD was recorded in Cantonese, was a supplementary statement of the deceased’s testamentary intentions and was recorded in the presence of one of her children who assisted with the making of the DVD. The Court admitted the DVD to probate as a Codicil pursuant to section 8(2)(b) of the Succession Act 2006 (NSW) because it was satisfied that the deceased intended the DVD to alter her will.
The Court also held that a DVD is a document and that the interested witness provisions in section 10 of the Succession Act apply to the making of a video will. The Court also provided helpful guidelines as to what the Court will require where one seeks to have a video will admitted to probate.
In an insightful judgment, Lindsay J indicated that although a video recording testamentary intentions can be admitted to probate under section 8, he warned that:
“… the nature of the informality attending an oral statement of testamentary intentions might, in practice, present an impediment to the Court being satisfied that the requirements of the section have been met… the transaction costs of satisfying the Court that those requirements have been met may be an unnecessary burden on the … estate: and the informality of expression that commonly characterises an oral statement may be productive of uncertainty as to the terms, or proper construction, of a video will, with a consequential, heightened risk of litigation…”
The best wills
The formalities required for signing and witnessing wills serve a number of important functions. As Australian law presently stands, computer generated wills and applications that ignore the will signing and witnessing formalities will only result in significant expense and delay for the willmaker’s estate.
The best wills are those that consider relevant estate planning issues, are carefully drafted with professional assistance, give proper consideration to the precision required for will drafting and comply fully with the legal formalities required for signing and witnessing wills.
This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.
Author: Gerard Basha