Increasingly more of us depend on the “on-line world” to communicate whether it be for business or pleasure or to stay connected with family and friends. Recently the Supreme Court of NSW considered whether a Computer Will left by the deceased before he died was intended to operate as his Will.
Prior to undergoing heart surgery, the deceased confided in his cousin that if anything should happen to him, he had made a Will and it was saved on his computer. When the deceased subsequently died widespread searches failed to locate a signed will amongst the deceased’s personal papers however 2 USB sticks were located. The data on the USB sticks was decrypted and an electronic document was discovered saved as “My Will”.
In NSW there are certain formalities that are required in order to make a valid Will. Failure to observe these formalities can lead to additional delay and expense to your estate.The Computer Document on its own did not satisfy the legal requirements for a valid Will because it wasn’t signed by the deceased in the presence of 2 independent witnesses. An application was made for the Computer Will to be declared as the deceased’s last Will. A Court can dispense with the legal requirements for the execution of a Will and uphold a document as a valid Will if the Court is satisfied that the deceased intended the document to form his Will. The issue to be determined was whether the deceased intended the Computer Document to operate as his Will.
The Court took into consideration the conversation the deceased had with his cousin before he died where the deceased alerted her to the location of his Will “should anything happen” to him and the content of the Computer Document itself. The Court found “The language used in the Computer Document is clearly language of testamentary intention. The deceased was careful to identify with precision those items that he had decided to “leave” to the named persons in the Computer Document” and provided reasons why family members were not named as beneficiaries in the document.
The Court was satisfied that when the deceased informed his cousin that he had made a Will and that it was encrypted and gave her the password, he intended the Computer Document to operate as his last Will.
Whilst ultimately the application was successful, it was not without associated difficulty and delay and uncertainty for the family and friends of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted his Lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
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