In order for a will to be considered valid, there are a number of requirements that have to be met. In short, the law requires that:
1. the will is in writing;
2. the will is executed by the will-maker (‘testator’) or by another person at the direction of the testator; and
3. the will is either signed or acknowledged by the testator in the presence of a minimum of two witnesses.
However, if a will fails to meet these formal requirements, it does not necessarily mean that it will not be held to be ‘valid’. In some circumstances, a Court will allow a will that does not meet these formal requirements to still take effect. In order to do so, a Court must be satisfied ‘on the balance of probabilities’ that the testator executed the will, and that it contained his or her intended distribution of his or her estate.
In this article we will explore a case in Queensland in which a court upheld the operation of a will written on an iPhone.
“This is the Last Will and Testament…” – Re: Yu  QSC 322
In September 2011, shortly before taking his own life, Karter Yu wrote a document on his iPhone beginning with the words “This is the Last Will and Testament…”
The document went on to describe the whole of Karter’s property and estate, provided details for its intended distribution and even went so far as to name an executor – Jason Yu, who brought the application before the Queensland Supreme Court.
In considering whether or not to uphold the will, the Court raised two major concerns. The first was that given the absence of any witnesses, there was no way of knowing whether or not Karter had actually written the document on his iPhone. The second concern, similar to the first, was that his phone was capable of being accessed by just about anyone else, casting further doubt on the authorship of the will.
The Balance of Probabilities
In continuing with the on-going trend of leniency that Courts have had with regard to informal documents, the Queensland Supreme Court held that on the balance of probabilities, the iPhone document was in fact the last will and testament of Karter, and could therefore be executed.
In reaching this decision, the Court required evidence that there was a real intention that the iPhone document was to act in lieu of a more formal will, and that its contents were reasonably clear. Karter’s iPhone document reasonably satisfied both of these requirements, and even contained his name and address, as well as his name at the foot of the document, where on paper his signature would have been.
Does this Mean that Courts will Recognise an iPhone Will?
The Court in Re: Yu was explicit in stating that this case did not establish that notes written on a mobile can be held to be a valid will. While it is, in and of itself, evidence that the Courts are slowly adapting the law to emerging technologies (in particular, electronic documents), drafting your will on your iPhone will ultimately cause more headaches than it would save.
Karter Yu’s named executor, Jason Yu, went through considerable legal expense to defend Karter’s iPhone will – these legal expenses alone ultimately ate up a considerable portion of his estate, much to the detriment of his named beneficiaries.
Amongst other things, a good will is one that makes the distribution of your estate as painless a process as possible, and while I’m sure someone, somewhere, is working on it, there still isn’t an app for that.