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Deceased Left a Will on Their Computer

For a person’s will to be recognised as legally valid, it must fulfil certain requirements. When a will is made in a form that does not conform to these requirements, it may still be upheld by a court if there is evidence that the testator intended the document to be their last will. In recent years there have been several cases that have come before Australian courts where a deceased has left a will on their computer or in some other unconventional format. This article deals with the situation where a person leaves a will on their computer.

Requirements for a will

The requirements for a will to be recognised as valid are as follows.

  • A will must be in writing;
  • A will must be signed by the testator or by another person at the testator’s direction;
  • The must be signed by two independent witnesses;
  • The testator must have had testamentary capacity at the time the will was executed
  • The testator must have been over the age of 18 (unless they were married).

Where a will does not adhere to these formal requirements, it may still be admitted to probate if a court finds that this is appropriate.

Robin Michael (deceased)

A recent matter where a deceased left a will on his computer was the 2016 Supreme Court of Tasmania decision of Robin Michael (deceased). In that case, the son of a deceased man sought to have an electronic document admitted to probate as a copy of the man’s last will. The court allowed the document into probate as it was satisfied that the deceased intended the will on his computer to have legal effect.

Robin Michael’s original will was on the hard drive of his laptop. It bore his digital signature; the printed copy bore a facsimile of the electronic signature. The deceased had made an earlier informal will of which the only beneficiaries were his two sons, Brett and Ben.

The court considered whether the file stored on the deceased’s computer was a ‘document’; whether the deceased intended it to be his last will; whether the electronic signature could be accepted as a signature; and what was the proper order to make in the circumstances.

It concluded that the file was a document, that the electronic signature on the will was the signature of the deceased and that he intended it to be his final will. It consequently admitted the document into probate.

The deceased left a will on his computer

The factual situation in the matter of Robin Michael (deceased) was somewhat extreme.

The deceased was married to Kerry, with whom he had two sons. In 2015, while the couple was on holiday, the deceased killed Kerry. After her death, he prepared the will document on his computer, inserted his electronic signature and emailed it to his accountant to witness.

The deceased attempted suicide later the same day but survived and was taken to hospital. He was later taken into custody and committed suicide in prison.

Police confiscated the deceased’s laptop and located the will document.

Is the will on the computer a document?

The court considered a number of earlier court decisions before concluding that the file on the deceased’s computer was a document. The decisions considered included the 2015 South Australian Supreme Court decision of In The Estate of Wilden. In that case, the court considered whether a video recording of the deceased setting out his testamentary intentions amounted to a document within the meaning of the Wills Act. The court found that the video was a document, stating:

“For such a claim to succeed, it is necessary to show that there is a document which embodies the testamentary intentions of the deceased and which the deceased intended to operate, in this case, as an amendment to her 1977 will.”

The court also considered an earlier precedent that had established that an audio cassette was a document. It noted that the contemporary approach of courts is to recognise electronic documents at least where there is evidence that the testator intended the document to be their will.

Is the signature valid?

The court in Robin Michael (deceased) found that the deceased’s electronic signature closely resembled the deceased’s signature and that he placed it on the document with the intention of giving effect to his will. The court noted that a signature does not have to be in a particular form and that earlier case law had recognised the following as valid signatures:

  • A typed name
  • Initials
  • A mark

The court admitted the document found on the deceased’s hard drive to probate.

Deceased leaving a will on their computer creates uncertainty

Although informal wills may be admitted to probate by courts, it is prudent for a person to ensure that there is no uncertainty as to the validity of their will by having the will prepared by a lawyer and executed in accordance with formal requirements.

If you are involved in a matter where the deceased has left a will on their computer or where some other type of informal will has been made, seek legal advice as to the possible ramifications of this as soon as possible.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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