Digital Wills

November 23, 2015

 

The digital world has impacted many aspects of our lives, so it was only a matter of time before the subject of digital estate planning reared its head.  

 

The recent Supreme Court case The Estate of Roger Christopher Currie [2015] NSWSC 1098, explored the issue of whether a digital Will could be admitted to Probate.

 

In this case, the deceased had prepared a computer document in 2009 which was titled “Last Will and Testament”, and saved the document on two USB sticks. The document named an executor, listed a series of bequests to various beneficiaries, and was signed off with the deceased’s typed name and date. The document was not printed, nor was any other paper Will discovered.

 

A computer expert was able to access the encrypted document, and determine that whilst the Will was initially prepared in 2009, it was last accessed in 2012, two months before the deceased died.

An application was made to the court to dispense of the usual requirements for a formal Will, and admit the digital document to Probate as the deceased’s last Will.

 

The Court considered the difference between a document setting out a person’s wishes as to how their property will pass on their death, and a document setting out a person’s wishes that intends to cause that distribution to come about.

 

The Court took into account the fact the electronic file included the word “Will”; the deceased informed people that he had a Will; and the wording of the document indicated testamentary intention (including appointing an executor and listing beneficiaries, dealing with the residue; including a notation as to why he had not provided for his siblings, and “signing” the document with his typed name and date). The Court held that in light of this, the digital document was a Will, and admitted it to Probate.

 

As this case shows, digital wills are potentially admissible to Probate. That said, making such an application to the Supreme Court is extremely expensive, and far exceeds the cost of attending a solicitor to have a formal will prepared. You are also not guaranteed that the document will be held to be your Will, and thus your assets may not pass to the people you intend them to go to.

 

For all your estate planning needs, contact the team at Jenkins Legal Services.

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