Will making and modern technology

The Queensland Supreme Court has recently validated two informal and unconventional wills created using modern technology.

Generally a will that does not comply with the usual formal requirements is not valid, and the Court has discretion in some cases to accept an informal will.

In Re Yu, the Court validated a will written by the deceased on his iPhone, and in Mellino v Wnuk, the Court held that a video recording on a DVD marked ‘my will’ showing the deceased discussing his wishes constituted a valid will. In both cases, the will makers sadly committed suicide.

However, these cases should not be viewed as an opportunity to create wills via similar means. In Re Yu and Mellino, the Court approved the wills only after careful consideration of the circumstances.

There are strict requirements in the relevant legislation that must be met for an informal will to be approved, and if they are not met, then it will not be valid. Essentially, it was simply a matter of luck in both of these cases that the informal wills complied with the legislative requirements.

It is also important to remember that a will cannot deal with assets outside of your estate, including assets in a family trust and your superannuation. So it is especially dangerous to attempt to manage your own estate planning by creating an informal arrangement like these if you hold assets in structures outside of your estate.

To discuss your estate planning and ensure that your assets are distributed in accordance with your wishes when you die, contact our estate planning team.

Written by Hannah Kulaga, Lawyer