In South Australia where a document does not meet the formalities required under the Wills Act 1936 (the Act) but the Court is satisfied that it expresses the testamentary intentions of the deceased and the deceased intended the document to constitute their will; s12(2) of the Act provides that the document will be admitted to probate as a will of the deceased.
Section 8 of the Administration and Probate Act 1919 provides that in any case where it appears doubtful to the Registrar
- Whether probate or administration should be granted, or
- Whether the registrar should exercise any power or discretion appertaining to the office,
the Registrar shall
- obtain the direction of a Judge, and
- act accordingly, and
- be subject in all cases to the control and orders of the Court.
Background
Elizabeth Seabrooke (the deceased) died on 24 April 2022 at Woodville South. The deceased had created an electronic document (the electronic Will) on an iPad using an iPad pencil to affix her signature to the final page; the document was witnessed in the same way. The electronic Will cannot be located on the iPad on which it was prepared and signed.
The deceased’s daughter Natalie Badsford (the applicant) was named as executor in the electronic Will and has applied for probate. A copy of the electronic Will was saved to a USB which has been lodged in the Registry. It appears nothing else was saved to the USB. The printout of that copy is sought to be proved as the deceased’s will.
The matter
In the Estate of Elizabeth Seabrooke (Deceased) [2023] SASC 122 is a referral from the Registrar under s8 of the Administration and Probate Act 1919 (SA). There are two issues with this referral:
- whether the electronic Will executed and witnessed on the iPad was a valid will.
- whether the electronic Will now having been lost, a copy should be admitted to probate.
Document
Section 4 of the Legislation Interpretation Act 2021 (SA) defines ‘document’ to include
“anything from which… writing can be reproduced with or without the aid of anything else”.
The Court considered that recent authority concerning the making of a will in an electronic form – at least where evidence provides that the author of the electronic document is the testator and that the testator intended the document to be their will – supports the recognition of electronic documents, such as a computer file, constituting testamentary documents for the Act.
The Court found that the PDF copy’s form and content replicate the electronic Will executed by the deceased on the applicant’s iPad on 15 October 2018. Additionally, the court was satisfied that the scanned copy is the printed copy of the electronic Will prepared by the applicant at the deceased’s direction, executed by the deceased before attesting witnesses.
Applying In the Estate of Robin Michael (deceased) [2016] SASC 164 whether an informal will should be admitted to probate under s 12(2) of the Act the Court accepted that in affixing the facsimile signature on the digital computer file document the deceased did so intending to give effect to the document as his will.
The Court held that the deceased in affixing her electronic signature to the electronic Will, intended it to constitute her will.
Lost Will
The relevant principles where a court will recognise a lost will and admit it to probate were summarised in In Re Estate of Hall (deceased) [2011] SASC 117 at [15] as follows:
- that the original will existed;
- that the original will was duly executed; or, if the original will did not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
- that there is evidence of the terms of the original will;
- that the copy will is an accurate and complete copy of the original will;
- that thorough searches have been conducted to find the original will, including publishing advertisements regarding the missing original will;
- that the original will revoked all pre-existing wills;
- that the circumstances surrounding the absence of the original will are adequately explained;
- that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris; and
- that the presumption of revocation does not arise or has been rebutted.
The applicant submitted that routinely in her work as an insurance broker, once a client had signed the insurance proposal documents, those client files were deleted from her iPad to avoid clutter and unwanted storage on the device.
The court held it was plausible that the electronic will could not be found on the applicant’s iPad after forensic examination because the applicant accidentally deleted the file during a routine clearing of unwanted files on the iPad.
After carefully reviewing the evidence, the court was satisfied that the applicant for probate downloaded the document as a PDF onto her iPad. The applicant did not print a hard copy of the document as she intended the document to be signed electronically.
After the deceased and the witnesses signed electronically, the applicant emailed herself the executed document as an attachment with the original PDF file stored on her iPad. An executed copy of the document was given to the deceased, but that copy could not be found among the deceased’s papers following her death.
The PDF document was forensically examined by a computer expert who could not find the electronic will on the applicant’s iPad but considered the PDF document as a scanned copy of the electronic will.
The Court ruled that the electronic will, although only executed and witnessed on the final page, met the formal requirements of the Act. The Court accepted the applicant’s evidence and reason for the inability to find the electronic will on her iPad.
The electronic Will contained a general revocation clause for all prior wills and codicils and made four specific bequests of $25,000 each to the deceased’s grandchildren.
The applicant’s interest in the deceased’s estate was reduced by the electronic will being admitted to probate; eliminating any benefit that would otherwise arise from the absence of the original will.
The Court was further satisfied that sufficient searches had been conducted to find the will including forensic examination by a computer expert who adequately explained the circumstances surrounding the will’s absence.
The Court also found that the presumption of revocation had been rebutted.
Accordingly, the deceased intended the electronic will on the applicant’s iPad to be her will.
The decision
Although the document cannot be found, the Court directed the Registrar under s 8 of the Administration and Probate Act 1919 (SA), to admit the PDF copy of the will to probate.
The Court admitted the will to probate under s 12(2) of the Wills Act 1936 (SA). It was satisfied that the scanned PDF copy is the printed copy of the electronic will prepared by the applicant at the deceased’s direction and executed by her before attesting witnesses on 15 October 2018.