Court orders production of a laptop used to create a Will

Denys Wlademir Pasitschnyk (“Denys”) died in April 2016 with an estate estimated to be worth around $1 million.

On September 1, 2016, Susan Coleiro entered a caveat to ensure that she would be notified prior to a grant being sealed. Susan submitted that Denys died intestate and that, she was his domestic partner at the time of his death.

Following Susan’s caveat, three other people entered caveats, claiming to be good friends of Denys and disputing the existence of a domestic relationship between Denys and Susan.

In most jurisdictions the court may, for the purpose of enabling the proper determination of any matter in question in any proceedings, by subpoena or otherwise, order any person either to attend court to be examined as a witness, to produce any document or thing to the court or both.

Two of those friends Carmen D’Angelo and William Harrison (“the applicants”) sought to propound a copy of Denys’ will instructions under s 12(2) of the Wills Act 1936 (SA) (the Wills Act) claiming Application for production and examination of a laptop alleged by the applicants to have created testamentary documents –that the documents were prepared on a laptop on April 6 and 8 2016.

Denys’s friend Brian McIvor, submitted that Denys made five wills and gave instructions for a will on 6 and 8 April 2016. While these documents expressed the Will makers intention they did not meet the formal requirements of s 8 of the Wills Act.

The applicants sought an order requiring production of the laptop to be examined by, Jean Pierre Du Plessis, a forensic expert in accordance with a proposed digital examination protocol (“the application”).

The Court considered that the origin of the 6 and 8 April 2016 documents was relevant to the matters in dispute between the parties and the determination of Denys’ last testamentary intention. Emphasising that the exercise of its quasi‑inquisitorial probate jurisdiction as to which document represents the testamentary intention of Denys will lead to admitting his last will to probate as all prior wills are revoked.

Similarly, the parties are under a duty to disclose documents that are directly relevant to material issues in pleadings or affidavits.

The Court ordered William Harrison to provide the laptop computer in accordance with the “Digital Examination Protocol” provide access passwords to the forensic expert And do all things necessary to assist in the examination; and within seven days to disclose:

documents in his possession or control relevant to the devices, including, but not limited to, receipts and other documents relating to any repair and removal of the hard disk drive in or around June 2017;

and his telephone records for the period 6 April 2016 to 8 April 2016.

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