Dying to be part of the digital age

Estate planning law is one of the oldest areas of the law and is one area that plays on people’s minds more as they grow older. Following the acquisition or sale of assets, a person should review and possibly update their will to reflect the change in assets and to ensure that their estate is distributed in accordance with their wishes upon death.

In a modern twist, courts have recently had to consider the issue of whether electronic documents could be applied as a person’s will. The case law highlights another area of law impacted by the digital age and also the importance of ensuring intention is clearly expressed.

The case of Yazbek v Yazbek [2012] NSWSC 594 is one such case in which the courts found an electronic document created by the deceased was a will expressing the deceased’s testamentary intentions.

The facts

Daniel Yazbek created a Microsoft Word document called “Will.doc” on his computer just before his death. Daniel had told a business association that if anything happened to him, he had a will on his computer. Following Daniel’s suicide, the document was found on his computer.

Daniel’s brothers argued that Will.doc Daniel’s testamentary intentions and that he intended the document to be his will. The document referred to most of Daniel’s assets, was stored on a password protected computer and a computer expert showed that no one else had modified or edited the document. Daniel’s name was typed at the end of the will, but was not an electronic signature.

The Court had to consider whether the document satisfied the requirements of the Succession Act 2006 (NSW) to be a valid will noting that it was in electronic form, unsigned and not witnessed. Daniel’s parents argued that Daniel did not intend the electronic document to be his will and that Daniel died intestate, that is, without a will.

The Court’s findings

The Court found that Daniel intended for the electronic document “Will.doc” to be his will and that the document expressed Daniel’s testamentary intentions on the following grounds:

(a) the terms of the document purported to distribute parts of Daniel’s estate;

(b) Daniel had told people he had a will saved on his computer;

(c) Daniel’s gifts in the electronic document represented a well-considered survey of each significant asset and disposed of many assets to a person who had an existing connection with the assets received;

(d) the document dealt with the expected principal claims on Daniel’s funds;

(e) the document was saved with the document name of “Will.doc” with will being a commonly understood means of recording testamentary intentions; and

(f) the language used in the document reflected an intention that Daniel believed he would not be alive at the time the document would be read.

Considerations for Clients

Whilst in this case the Court decided that the document did constitute the deceased’s will, the case was decided on its particular facts. Crucial to any similar case is the intention of the deceased and the circumstances that surround the wording of the document. The intention must be clear and to avoid any dispute a formal will should be prepared in accordance with the Succession Act (2006) NSW, or the applicable legislation in your state or territory, and signed and witnessed.

We recommend a formal will is always prepared and that professional advice is sought so that assets are distributed in accordance with the deceased’s intention and to limit any claims against the validity of a will. Such claims may result in costly litigation, potentially dissipating the value of the estate. There have been a number of other cases in which an electronic document or handwritten letter were held not to be the deceased’s will.

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