The internet and digital technology have changed so many aspects of our lives, but how have they changed legal matters such as making a Will?
The shift in the legal area may already be in place. U.S Army Veteran Jay Schwer, who served in Iraq before moving to Australia, recorded a video instead of writing a Will. In the recording, he left everything to his girlfriend Katrina Radford, who encouraged him to make a Will before he picked up his new motorcycle that day. He also made it clear that nothing would go to his ex-wife Nicole White, and said he planned to “fill in the damn forms later”.
The same day, Mr. Schwer crashed his motorcycle. Although he survived the crash, he died 14 months later after being discharged from hospital from an accidental self-administered overdose of prescription painkillers.
Although Ms. White challenged the notion that the video constituted a Will and took the matter to the Queensland Supreme Court, the court ruled in favour of Ms. Radford.
Justice David Jackson ruled that the video was classed as a document and that it stated Mr. Schwer’s intentions.
So in this changing digital landscape, what constitutes a Will and what doesn’t? And how do you know if you’ve made one?
A Will as a legal document that states what you would like to happen to your money, your belongings and your other assets (your estate) when you die. According to Tracey Ryan, Special Counsel here at Shine, a traditional Will is on paper, signed and witnessed by two people, and dated.
Ms Ryan stresses that people should still compile traditional Wills in spite of the ease that digital options may offer. This is largely because whilst digital Wills may be seen as legitimate in the courts, it will save you or your loved ones $20-30k in court costs to take the more traditional approach.
Ryan also encourages people to be organised and clear cut so to prevent any unwanted court battles.
Ms. Ryan has seen Wills in the form of text messages, videos and even a Facebook message. She says the key to having a court uphold them as legally binding documents comes down to “testamentary intent”.
Under the Acts Interpretation Act 1954, the definition of a Will is broad and includes not only paper but any medium in which messages are capable of being recorded. A court can dispense with a traditional Will in favour of a digital statement if testamentary intent can be proven. While Section 10 of the Succession Act 1981 specifies what you have to do in order to make a Will formal, section 18 says a court will consider any document as long as it meets the criteria of the deceased being aware of their actions and having intent.
Any document in existence must be bought to the court’s attention if it has testamentary intent. The process that someone goes through to prove that they possess the last Will is called probate.
In an increasingly digital-dominated landscape, it’s likely that less traditional Wills will become even more commonplace.
Which is better?
Whether digital or traditional, it’s ideal to have a statement of what you want to happen to your estate if you pass on.
Many people don’t have a Will for various reasons: they’re young, they’re healthy, they don’t have many assets, they think it will be expensive or they just haven’t gotten around to it. Yet anyone over the age of 18 can make a Will!
The death of a loved one is a painful and difficult time in one’s life. As well as coping with your grief, you may also have the responsibility of looking after the person’s possessions or estate. Shine Lawyers can provide the support and advice you need during this time and also offer useful advice to help you prepare your own Will. To get in touch with our experts wills and estate lawyers contact us today.
Written by Shine Lawyers. Last modified: March 20, 2019.