When Is A Will A Will?

In order for a will to be valid it must comply with section 8 of the Wills Act 1936 (SA), namely:
(a) It must be in writing;
(b) It must be signed by the testator (the person making the will);
(c) It must appear on the face of the will that the testator intended to give effect to the will by signing it;
(d) The testator’s signature must be witnessed in the presence of two witnesses present at the same time; and
(e) The two witnesses must also sign the will in the presence of the testator.
In most circumstances, if these requirements are not met, the will would not be legally valid. However, in some circumstances, the Supreme Court can order that a will that has not met the formalities of the Wills Act 1936 is, in fact, still a valid will. In order to have such a matter considered by the Court, an application under section 12(2) of the Wills Act 1936 must be made.
Section 12(2) applications generally
Generally for a section 12(2) application to be successful the Court must firstly find that the deceased intended a document to express testamentary intentions. To satisfy this requirement the document must be more than instructions or a statement of wishes or requests and the Court must be satisfied that the document was intended to be final and not merely a draft in anticipation of executing a formal will.
Secondly the Court must be satisfied that the deceased’s intentions are expressed in a “document”. The word “document” is not defined in the Wills Act 1936 and this has led to the Court having to consider what constitutes a “document” for the purposes of the Act.
With the advancement and increased use of technology the Court has, in recent times, had to consider whether electronic files, DVD recordings or text messages can be considered a “document” for the purposes of the Wills Act 1936 and, if so, whether they expressed testamentary intentions of the deceased person.
DVD Recordings
In the South Australian case of Estate of Wilden (Deceased) [2015] SASC 9 Justice Gray considered whether a DVD recording made by the deceased was a document for the purposes of section 12(2). In this case the deceased stated on the DVD recording “…this is …somewhat of an official last will and testament as I don’t have a written document anywhere at this stage. This is just … a failsafe until such time as I do get something like that done.” He went on to state that all his belongings were to be shared between his sister, her husband and her children.

Justice Gray considered the definition of “document” contained in the Acts Interpretation Act 1915 (SA) which defines “document” as including “any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device.” As there is no intention contrary to this definition within the Wills Act 1936 it was held that the DVD was a “document” for the purpose of the Wills Act 1936. The Court further held that the deceased intended the recording to constitute his last will and testament and a transcript of the recording was admitted to probate as the will of the deceased. However, His Honour did go on to state “I must say I do not consider this desirable or intended as it can lead to real uncertainty, but that is irrelevant to the consideration of this matter.”

In New South Wales in the Estate of Wai Fun Chan (Deceased) [2015] NSWSC 1107 it was held that a DVD recording was intended by the deceased to be a codicil to her will. In this case the deceased had prepared a formal will with her solicitor in March 2012 in the English language. In April 2012 she made a DVD recording in Cantonese which made additions to the formal will prepared in March. It was held that a transcript of this recording be translated into English and admitted to probate as a codicil to the formal will. Whilst accepting the DVD recording as a will Justice Lindsay noted that “video wills” places an unnecessary burden on the administration of the will maker’s estate and greatly increases the overall costs.

Electronic Documents
In The Estate of Roger Christopher Currie, late of Balmain [2015] NSWSC 1098 the Supreme Court of New South Wales considered whether an electronic file found saved to a USB stick was intended by the deceased to be or to operate as his will. The electronic file contained a typed document that began, “This is the last will and testament of Roger Christopher Currie…”. It appointed a friend as the sole executor, made several detailed specific bequests to friends and relatives and gave the residuary estate equally between each beneficiary mentioned in the document. The document stated that it was “signed” by the deceased on 1 April 2009. The document was not printed, nor was any other paper will discovered. In this case the Court was satisfied that the deceased intended the electronic document to constitute his last will and testament and ordered that a copy of the same be admitted to probate.
SMS Message

In Re Nichol; Nichol v Nichol [2017] QSC 220 the Supreme Court of Queensland considered whether a text message constituted the deceased’s last will and testament. In this instance the deceased created the text message on his mobile phone prior to taking his own life. The message read:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will”
The text message was saved to deceased’s phone but it had not been sent to the intended recipient. The Court considered whether the message stated testamentary intentions and whether the deceased had capacity at the time of typing the message. In this case the Court held that deceased intended the unsent text message to operate as his will. It was ordered that the execution requirements be dispensed with and that the SMS message be admitted to probate in solemn form.
Suicide Notes
Suicide notes can sometime contain testamentary intentions. However, in most cases a suicide note will not comply with the formalities required by the Wills Act 1936 as almost certainly the person contemplating suicide will not have the note witnessed by two witnesses. However, provided that the language of the note is sufficiently clear, the Court may consider a suicide note to be the last will and testament of the deceased. The Court recognises that a person contemplating suicide has a compelling reason to make a will to dispose of their assets as they wish. Justice White stated in Public Trustee v Alexander – Estate of Alexander [2008] NSWSC 1272 at 25 that merely because a document should be characterised as a suicide note does not mean that it cannot also be characterised as the deceased’s intended will.

In order for a suicide note to be deemed legally binding there are several legalities that the Court will take into consideration. The Court must be satisfied that the deceased intended the note to express testamentary intentions and that the deceased intended the document constitute his or her will. If successful, such a note can have the effect of invalidating previously made wills, even if the previous will complies with all the requirements of the Wills Act 1936.

In the case of Costa v Public Trustee [2007] NSWSC 1271 a suicide note was handwritten by the deceased in the form of a poem and found in his bedroom following his death. The Court at first did not admit the suicide note to probate as it was initially considered to be a statement of “wishes and requests” rather than a document intended to have testamentary effect. This decision was overturned on appeal where it was argued that the trial judge had not given sufficient weight to the “solemn unique occasion” upon which the suicide note was written as a last message to his parents, the persons apparently closest to him. As a result, it was determined that the suicide note did in fact constitute a valid will and testament

Whilst the above case examples outline situations where informal wills have ultimately been upheld by the Court, it should be noted that this is definitely not always the case. Each of the above cases were decided upon a particular set of circumstances that were unique to each case. There is no guarantee that an informal document will be recognised as a will by the Court and indeed in each of the above cases the Courts cautioned against relying on improperly executed wills.
In contrast to the cases mentioned above, there are numerous cases in which informal wills have been rejected by the court. For instance in Mahlo v Hehir [2011] QSC 243 the Supreme Court of Queensland was not convinced that a will found saved on a computer contained sufficient testamentary intentions. In this case the Court gave significant weight to the fact that the will was not signed by the deceased. The Court accepted evidence that the deceased understood that she had to print out and sign the document to make it a valid will. The Court gave weight to evidence that that she knew the appropriate procedure, as she had made a formal will through a solicitor only months prior. So although the Court thought that the deceased intended to make a new will, the Court could not find that the document was in fact the intended will of the deceased person.
In Phillpot v Olney, Estate of Tracey Aubin [2004] NSWSC 592, the Supreme Court of New South Wales held that suicide notes prepared hours before the deceased’s demise could not be admitted to probate as her last will and testament. The Court came to the conclusion that the deceased lacked testamentary capacity to form the intention for the notes to constitute her will.
Whilst informal wills are potentially admissible to probate, making such an application to the Court under section 12(2) involves lengthy proceedings, is extremely expensive and far exceeds the costs of instructing a solicitor to prepare a formal will. These costs ultimately diminish the net worth of the estate. Furthermore, such an application requires the exercise of discretion on the part of the Court and there no guarantee that the document will be considered valid by the Court. Consequently, it must be emphasised that testators should be encouraged to make wills which comply with all the formalities of the Wills Act 1936.