You update your phone regularly why not your Will

As I have previously posted Courts have held that a video recording was a valid codicil. Similarly an unsent text message with the words “My will”, a document created and stored on a computer and similarly a document created on an iPhone were considered to be an informal Will.

To be valid, a will must be in writing, whether typed or handwritten.

The Will maker must have testamentary capacity meaning they must understand:

  1. the nature of the Will and its effect;
  2. the property which they are disposing of;
  3. the potential claims on their estate; and
  4. must not suffer from “a disorder of the mind”.

The Will maker must sign the Will in the presence of two independent witnesses. Importantly a beneficiary of a Will cannot be a witness.

In most instances a person must be 18 in order to make a Will. In exceptional circumstances a Court order can be applied for to make a Will for a minor.

Unless made “in contemplation of a particular marriage” a Will is automatically revoked by marriage and if no new Will is made the estate will be administered according to the rules of intestacy.

In a recent case the Court concluded that in an age where people outlay significant amounts on a regular basis to update their phones –a small outlay to correctly execute a Will to secure potential benefits for loved ones and dependants should be an elevated priority. A person’s last Will is perhaps the most important document that they will ever sign in their lifetime. The long-term worth of leaving a valid Will will always exceed the cost of a new electronic device

Stephen Jones died aged 48 in November 2013. He died of a heart attack but had suffered from coronary artery disease for some years. Sadly it appeared that Stephen had heart surgery scheduled later that week.

Stephen was in a de facto relationship with Michelle Young. His two children, David and Kirsty-Ann from his former marriage to Devranee that ended with their divorce in 2010, survive him.

Stephen had left a four-page document purporting to be a Will which appeared to have been altered by the creation and substitution of new pages 1 and 2 reassembled with the original execution and attestation page (Page 3) and possibly an original page 4.

The Court found that the document did not meet the requirements for proving the formal validity of a will under the Act. However the Act provides that a document purporting to embody a deceased person’s testamentary intentions may be accepted as a deceased person’s will or an alteration to their will, if a court is satisfied that the person intended the document to constitute their will, an alteration to their will, revoke the person’s will or revive a will or part of a will of the person, as the case may be.

Stephens half-brother, Sam Martin asked the court that the four page stapled document found in an envelope in Stephens’ home be accepted as his informal will under the Wills Act 1970 (WA) (“the Act”). The document named Sam as Stephens’ executor.

Sam sought a direction seeking a grant of probate in his favour as executor of the will of Stephen dated 25 May 2012 as altered. Michelle argued that the document was not an informal will for the purposes of the Act however she would abide by the decision of the court.

The court addressed the following questions:
(1) Is there a document?

(2) Does the document embody the testamentary wishes of the deceased; and

(3) Is the Court satisfied that the deceased, by some words or acts, demonstrated it was their intention that the document should operate as his or her will.

In answer to these three key questions the Court decided,

(1) there is a document

(2) that document embodies Stephens’ testamentary wishes.

(3) it was satisfied that the document displays Stephens’ intentions and that it should operate as his will.

The court held that Stephen had removed and destroyed the original pages 1 and 2, created new pages 1 and 2, then combined the two new pages with the existing signed and witnessed page 3 and re stapled them back together after 25 May 2012 believing he was validly ‘updating’ his will, but without having any of his ‘updating’ efforts witnessed again.

The Court stressed that tampering with an executed will once it has been signed and witnessed is a seriously dangerous practice which is to be actively discouraged and that such tampering could result in an altered document being rejected, even as an informal will.

 

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