The lawyers responsible for a legal first in Australia – having the Court declare a Will on an iPhone to be valid- have gone back to court for another win over bequest details in what’s become known as the “iWill”.
In what was a legal first in Australia, Brisbane estate litigation lawyer Charlie Young successfully argued to the Supreme Court in Brisbane in 2013 that a Will typed into a mobile phone before the owner took his own life, was legally valid.
Now Bennett & Philp Lawyers has succeeded in having the Supreme Court clarify some crucial wording in the DIY Will which involved the distribution of assets with hundreds of thousands of dollars at stake.
Mr Young, Senior Associate and estate litigation lawyer with Bennett & Philp Lawyers, said the circumstances of the iPhone Will were very sad and involved a young international resident who lived and worked in Australia.
In September 2011 the man faced an intense personal crisis. With no witnesses he used a “Notes” app on his iPhone to tap in a will shortly before ending his life.
The man’s brother, named as executor, could not implement the Will’s instructions as the Will did not comply with legal requirements (such as the Will being in writing, signed and witnessed). Justice Lyons in 2013 declared the iPhone Will was valid and probate was granted.
At the time Mr Young thought the Court’s declaration that a Will typed and saved on a mobile phone constituted a valid Will was a first in Queensland, if not Australia. In the years since he has not been aware of any earlier precedents to the “iWill”.
But now the distribution of the deceased’s assets hit a snag because the iWill did not clarify exactly which assets were to be shared among nominated beneficiaries.
Mr Young outlined the issues the firm was dealing with.
“The iWill spoke of five beneficiaries but only named four so we had to clarify whether this was a mistake or someone was overlooked. The Court agreed it was a mistake.
“More significantly there was some question over the definition of the term ‘cash’. The deceased wanted his debts paid from his various bank accounts and the remainder of ‘the cash’ shared among certain beneficiaries.
“The issues arose when superannuation, life insurance and outstanding employee entitlements totalling around $300,000 were paid into the estate. The question for the executor was whether this substantial sum should fall to the named beneficiaries of ‘the cash’ or treated separately,” Mr Young said.
Mr Young asserted to the Court that these funds were not meant to be part of the term ‘cash’. The firm was acting for the deceased man’s brother who was the executor and also a beneficiary. As executor he was troubled because the iWill did not specify how the superannuation and life insurance funds were to be disbursed.
“The wording confusion of the iWill is a common risk among many home-made Wills. The wording may be unclear which is why you end up having to ask the Court to rule on what we think the deceased meant or intended to mean,” he said.
In the event the Supreme Court held that the superannuation, life insurance and employee entitlements were not intended to be part of the term ‘cash’. Liquidating the various assets had taken some time as the executor worked his way through the system.
Although the Will was not witnessed, the Court found it had been created in the iPhone by the young man with the clear intention of it being legal and operative before he tragically ended his life moments later.
“There were special factors in this decision but they do not mean others can use a mobile phone to prepare a DIY Will and expect it to be valid,” he said.
“Quite apart from the usual requirement that a Will be in writing, signed and witnessed, there are wider issues here such as proving a “will” on a mobile phone was prepared by the hand of the person in whose name it was created, and that person intended it to form their will.
“Then there’s the issue of phone security in general and what might happen if you lost your mobile phone. Nobody should keep irreplaceable and sensitive documents on a mobile phone,” he added.
Mr Young said the Court’s upholding the validity of a Will on a iPhone does not open the floodgates to people using mobile phones for DIY Wills.
“The key advice to people is – don’t do DIY Wills because if the wording is not legally precise, it can create big problems downstream for those trying to interpret your wishes,” he said.
Read our previous article regarding an unsent text message Will here.
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