Deceased Left a Will on Their Computer

For a will to be recognised as a legally valid document, it must fulfil certain requirements. When a will does not conform to these requirements, it may still be held to be valid by a court if there is evidence that the testator intended it to be their last will and had testamentary capacity. In recent years there have been several cases before Australian courts where a deceased person has left a will on their computer or in some other unconventional format such as on a mobile phone. This article deals with the situation where someone leaves a will on their computer.

Requirements For A Will

The requirements for a last will and testament to be valid are as follows.

  • It must be in writing;
  • The will must be signed by the testator or by another person at the testator’s direction;
  • The will must be signed by at least two independent witnesses;
  • The testator must have had testamentary capacity at the time it was executed
  • The testator must have been aged at least 18 (or been married at the time they made the will).

Where a will does not conform to these formal requirements, it may still be admitted to probate if a court finds it is appropriate.

Robin Michael (Deceased)

In the 2016 Supreme Court of Tasmania decision of Robin Michael (deceased).  a deceased person left a will on his computer. In that case, the son of the deceased sought to have an electronic document admitted to probate as a copy of his father’s last will. The court allowed the document into probate as it was satisfied that the man had intended the will on his computer to be of legal effect.

Robin Michael’s original will was stored on the hard drive of the man’s laptop. It bore his digital signature and the printed copy bore a copy of his electronic signature. The deceased had made an earlier informal will that had only two beneficiaries: his two sons.

The court considered the question of whether the file stored on the computer was a ‘document’; whether the deceased intended it to be his last will; whether the electronic signature was valid; and the proper order to make in the circumstances.

The court concluded that the file was a document, that the electronic signature was a valid signature and that the deceased intended the document to be his final will. It admitted the document into probate.

The Deceased Left A Will On His Computer

The factual situation in the case of Robin Michael (deceased) was somewhat extreme.

The deceased was married to a woman called Kerry, with whom he had two sons. In 2015, while the deceased and Kerry were on holiday, the deceased killed Kerry. After her death, he prepared the will on his computer, inserted his electronic signature and emailed it to his accountant to witness.

The deceased attempted suicide later that day but survived and was taken to hospital. He was later taken into custody where he committed suicide.

Police confiscated his laptop and found the will document.

Is The Will On The Computer A Document?

The court considered a number of earlier court decisions prior to concluding that the file on the deceased’s computer was a document. The decisions it considered included the 2015 South Australian Supreme Court decision of In The Estate of Wilden, a case where the court considered whether a video of the deceased setting out his testamentary intentions amounted to a document under the Wills Act. The court found that the video was a document, stating:

“For such a claim to succeed, it is necessary to show that there is a document which embodies the testamentary intentions of the deceased and which the deceased intended to operate, in this case, as an amendment to her 1977 will.”

The court also considered an earlier court decision that had found an audio cassette to be a document. It noted that the contemporary approach of courts is to recognise an electronic document at least in circumstances where there is evidence that the will-maker intended it to be their will.

Is The Signature Valid?

The court in Robin Michael (deceased) found that the electronic signature closely resembled the signature of the deceased and that he placed it on the document intending to give effect to his will. The court noted that a signature is not required to be in a particular form to be valid and that earlier case law had recognised the following as valid:

  • A typed name
  • A person’s initials
  • A mark

The court admitted the document found on the hard drive into probate.

Person Leaving A Will On Their Computer Creates Uncertainty

Although courts may admit informal wills to probate, it is prudent for a person to ensure that there is no uncertainty as to their will’s validity by having the will prepared by a solicitor.

If you are involved in a matter where a person has left a will on their computer or where another type of informal will has been made, contact Go To Court Lawyers for legal advice.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts, a Master of Arts and a Graduate Diploma in Legal Practice. She practised law for eight years, working in criminal defence, child protection, domestic violence and family law in the Northern Territory and Queensland.
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