The Validity of iWills

December 19, 2014 Hull & Hull LLP Estate Planning, General Interest, In the News, Wills 0 Comments

A recent decision in Queensland, Australia determines whether a Will typed into the Notes Application of an iPhone stands as a valid Last Will and Testament.

According to an article in the National Law Review, the deceased, Karter Yu, used his iPhone,  and specifically the Notes Application, to draft a Will shortly before facing an intense personal crisis.

Despite the fact that the Will was not witnessed (a legal requirement under local laws), the Court found that the Note was nonetheless created by the testator, and that there was a clear intention of the Note being legal and operative.  Furthermore, the Court found that the Note had the testator’s signature (I assume electronically), and that it was time and date stamped by his iPhone.  The title to the Note was ‘Last Will and Testament’

Therefore, the Will was found to be valid and probate was granted.  It seems however that the Court considered special factors in this scenario, and generally did not intend to open up the floodgates to allow people to prepare a do-it-yourself Will on a smartphone.

A decision such as the one in Australia, is not the only scenario where Courts have upheld Wills as valid, despite lacking the formal requirements.  In fact, a 2011 Hull & Hull LLP blog recounts the case of the Saskatchewan farmer who in 1948 carved his Will into the bumper of his tractor that he was pinned under.  The farmer wrote with his small knife, “In case I die in this mess, I leave all to the wife.  Cecil Geo Harris”.  The tractor Will was found to be a valid holograph Will.

In Ontario, the Succession Law Reform Act governs the requirements of a valid Will.  Although a holograph Will does allow for some laxity with respect to these formal requirements, it is always suggested that individuals meet with professional estate planners to prepare valid Wills.  It is not recommended that testators rely on their iPhone, or their tractor bumper, in drawing their final wishes.

Noah Weisberg

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