Several cases in Australia have now recognised informal wills make on phones.
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Re Yu [2013] QSC 322
In Re Yu [2013] QSC 322. Jason Yu sought a declaration that an electronic document created by Karter Yu (the deceased) on his iPhone, was a valid informal will.
The document was expressed to be the deceased’s last will and appointed Jason Yu as executor.
To determine whether the will was valid, Justice Lyons considered section 10 of the Succession Act 1981 (Qld). This section identifies three key requirements relating to the signing of a will.
- The will must be in writing.
- The will must state the testamentary intentions of the deceased.
- The deceased must intend the document to be his or her will.
The court was satisfied that all three requirements were met.
Wheatley v Peek [2025] NSWCA 265
The court of appeal held that the note found in Colin Peek’s iPhone after his death was an informal will. It met the criteria of the Succession Act 2006 (NSW) in that
- it was a document (s 3(1))
- the document purported to state the testamentary intentions of the deceased (s 8 (1)(a) as the document was headed ‘Last will of Colin L Peek’ and listed who his executor and how all his assets were to be distributed
- the deceased intended the document to be his will (s 8(2)(a)) as it was written with finality and form, it dealt with all of his assets and there was evidence that the deceased told various people he had finalised his will.
Informal wills in Victoria
Section 9 of the Wills Act 1997 (Vic) provides the Supreme Court in Victoria may admit to probate a will that has not been executed in accordance with the Wills Act if the court is satisfied that the person intended the document to be their will.
There are a number of risk management lessons practitioners can take away.
- Executors should be advised to check computers and phones when looking for a will.
- The failure of a document to comply with the execution requirements set out in section 10 of the Wills Act may not be fatal to the document becoming a recognised will.
- When seeking a court order about the validity of an informal will clear evidence is needed of the will-maker’s intentions that the document was intended to be their last will.
For more information on the role of the executor refer to the LPLC publication A guide for executors.
More information on wills and estates can be found in the LPLC Practice Risk Guide Weatherproofing wills and estates.
