Posted 26 October 2017 5:53pm
The use of technology and virtual media has become increasingly preferable to the use of physical records. As such, the courts have had to interpret provisions drafted mostly around physical documents to encompass newer technologies not originally contemplated in these provisions.
One such development has necessarily occurred in succession law, where the courts have increasingly recognised the validity of typed wills. The first step towards this development occurred in 2006, where the law changed to allow for less formal documents to be accepted as wills. Prior to this, if a will did not strictly comply with the formal legislative requirements for drawing a will it would not be considered valid.
In a landmark ruling in 2006, a will typed into an iPhone ‘Notes’ app was declared legally valid by the Queensland Supreme Court. This was the first time that a will typed into a smartphone would be considered valid.
More recently this year, in another Queensland case, the Supreme Court held that a deceased’s draft unsent text message leaving his possessions to his brother and nephew, instead of wife and son, is an effective will. If the will was held not to be valid, under intestacy rules the wife would have taken on the role of managing the deceased’s estate.
Interestingly, in some US states, apps are available in iTunes for creating wills. While these apps are available in Australia, this does not necessarily mean they have legal standing.
There has been concern raised that if iPhone wills are declared valid, this would open the floodgates to people using mobile phones for do-it-yourself wills. However Christine Smyth, Queensland Law Society president and succession law specialist notes that there are still significant hurdles which must be overcome to establish that a document that looks like a will is in fact a will.