Digital and video wills – valid legal document or passing fad?

Posted on Apr 16, 2015 by Terry Morgan   |   Categories: Wills & Estates

As we increasingly embrace technology and the digital realm in our daily lives, there remain some limitations, such as planning for your death – written wills are still more valid than video or digital versions.

Recent Australian cases have acknowledged certain situations where digital documents may be treated as exceptions to the traditional formal Will rules – where the courts cast aside the legal requirement of having a written document with two witnesses. However, as so few cases have been successfully argued in the Courts, acceptance of them may only occur in exceptional circumstances.

Therefore, Baker Love recommends you get a professionally drafted written Will rather than risk your estate on a video or digital version. A written Will ensures that the estate administration process is a smooth one, and the drafting of such a document is relatively inexpensive when weighed against the costs incurred in proving that a digital will is valid.

Where the deceased has already prepared a written Will, this will take priority over any video or digital documents. In any case, the Court must consider whether such a document is admissible and pass judgment on whether the deceased was of sound mind at the time of the recording. The informality of digital documents leaves them open to manipulation, conflicting intentions and – in the extreme – sabotage. Courts therefore resist the acknowledgement of digital Wills.

The uncertainty of digital Wills may have distressing consequences for the families of the deceased. The range of technological documents available greatly broadens the search for a Will to discover the true intentions of a loved one. The uncertain legal status of a digital Will can lead to the high costs and emotional pressures resultant from lengthy court proceedings.

One case where a digital will was accepted by the Court as valid was in the Queensland case of Re: Yu. After Mr Yu’s tragic suicide, a number of documents were found on his iPhone, including an entry into his “notes” app, which set out his intentions for the division of his estate and the appointment of his brother as executor.

However, this case does not suggest that it is now acceptable to simply write up your intentions on your smart phone and think nothing more about settling your affairs. The success of this case rested entirely upon the very unique circumstances of this man. He used the official language of formal Wills, had no other written Will, and had created other documents on the phone supporting the validity of his intentions.

Unfortunately, some online businesses are cashing in on this digital trend, so you should beware of purchasing online Will products before their validity is tested in the Courts.

For example, there is a business website specifically focusing on the redistribution of your online accounts, including email and twitter, once you pass away. It claims to provide a “digital Will” and an online register of digital assets to enable people to control the direction of them when they die. However, the legal standing of these offers is yet to be tested and does not replace a written Will to communicate your last wishes.

This site’s existence does raise an important point – that we should consider all assets, including valuable digital accounts, when drafting our Wills. However Wills their traditional written form are still one’s best protection.

If you need advice on a legal issue with your Will, or would like to create a written Will to ensure that your intentions are formally recorded and followed, contact Baker Love’s Wills and Estate Planning Team.