iWill

January 29, 2014

will

While informal will cases are not that uncommon, there appeared to be an outbreak of technology related ones in late 2013. The NSW Supreme Court admitted “will.doc” (found on the deceased’s hard disk) to probate in Yazbec v Yazbec [2012] NSWSC 594. There was also Queensland’s “iWill Case” (Re Yu [2013] QSC 322) which received popular press coverage and was the subject of numerous law firm newsletters as it was the first case where a will created on an iPhone was admitted to probate.

Informal wills are often made in tragic circumstances. Both Re Yu and Yazbec were cases where the deceased killed themselves shortly after creating the informal will. There are also suicide note cases such as  Costa and Another v The Public Trustee of NSW [2008] NSWCA 223. In that case the Court of Appeal held that a suicide note in the form of a hand-written poem found in the deceased’s bedroom which was addressed to his mother and father and included the words, “I think I’m dying” and “I want you to have my house” was intended to be a will.

It also appears that some would be testators have difficulty finding a sheet of paper at the right time:

  1. For example, Mr Slavinskyj decided to write his will in pencil in Ukrainian on a plasterboard wall in his house. He wrote  “To all my nieces USSR” and the name and address of one of his nieces. After signing under his writing, he placed an envelope which had the name and address of another niece written upon it in a crack in the wall. This was done in the presence of two witnesses, one of whom also signed the wall (the other, who could not read Ukrainian, didn’t). Mr Slavinskyj was admitted to hospital the next day and did not return home before his death. The writing on the wall and the envelope were admitted to probate (see In the Estate of Pantelej Slavinskyj, deceased (1988) 53 SASR 221);
  2. Merchant seaman, James Barnes purported to record his will by writing the words “Mag. Everything I possess. JB”,  in indelible ink on an empty eggshell (which was discovered on top of a wardrobe in his bedroom after his death). The court wasn’t satisfied of testamentary intent and the eggshell was not admitted – see Hodgson v Barnes (1926) 43 TLR 71;
  3. Perhaps most tragically of all is the the 1948 Canadian case of Cecil George Harris, a farmer, who was crushed to death in a tractor accident. Before he died, he managed to scratch the words “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” on the tractor under which he was pinned.  The scratching was held to be a valid will. In an interesting corollary to this story, after spending decades in the archive of the Courts. the fender from the tractor is now on display in the library at the University of Saskatchewan’s college of law.

If these tales have whet your appetite, you might like to read Robert S. Menchin’s book “Where There’s a Will: A Collection of Wills – Hilarious, Incredible, Bizarre, Witty….Sad

Creative commons acknowledgement for the photograph.

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