An Informal Will is better than no Will but….

In a discussion that I had recently, a friend of mine asked if a formal Will is really necessary, as legislation in most jurisdictions provides that  a Court can deduce the testamentary intention of the deceased by taking extrinsic evidence into account. Whilst that is true it is much easier, and less expensive to make a formal Will.

Roger Currie died in July 2012 aged 52. He had a long history of heart problems and died following surgery to his heart valves. Roger had never married.

Following his death no formal Will was found. If there is no Will the rules of intestacy apply, so his brother David sought letters of administration in respect of Roger’s estate. Roger had created a Computer Document that set out his intentions, therefore several of his friends began Court proceedings seeking orders that probate be granted in respect of a document found on Roger’s computer after his death (the Computer Document).

Roger had discussed the need for a Will for many years before his death. He had asked a friend:

“with my heart problems, would you be my executor if something goes wrong?”

The friend said that he was willing to be the Rogers’s executor.

In April 2012 Roger had a party at his home, he discussed his heart problem and the fact that he felt that although he was reticent to have  surgery he felt he had no other option.

Roger made a gesture over his shoulder while telling one of his friends

“If anything happens to me I have made a will. It’s encrypted.”

He told her the pass code but the friend couldn’t recall the number. Roger had made a Will about ten years before he died and told his friend at that time that it was located in

“the antique wooden accountant’s box with the secret compartment”.

After Roger died two USB sticks were found in his house, the password was bypassed, and the Computer Document discovered. A forensic analysis established that the Computer Document was last modified in April 2009, and last accessed in May 2012.

The Court held that the language used in the Computer Document is clearly language of testamentary intention. Roger had:

appointed as sole executor and trustee of his estate the friend he asked many years before his death.

• identified with precision those items that he had decided to “leave” to the named persons in the Computer Document.
• He was careful to deal with the residuary of his estate and to provide a choice of items to the named beneficiaries
• provided reasons why his siblings and his nephew were not named as beneficiaries in the document.
• provided that the document was “signed” by him – the last paragraph of the Computer document read – Signed by the writer Roger Christopher Currie on this day Wednesday, 1 April 2009.

The Court was satisfied that in the circumstances Roger intended the Computer Document to operate as his will.

If Roger had created a formal Will, his friends wouldn’t have had to go to the expense of hiring computer experts, and litigation lawyers, to seek the Courts opinion  to make sure that his testamentary intentions were met.

If you go to the trouble of creating a document that sets out your testamentary intentions – go that extra step and formalise it.