Where There’s An iWill, Is There A Way?

By Seth W. Krasilovsky

With the advent of smartphones, handheld devices function as information kiosks. Search upcoming movie showings and order tickets with the click of one button. Open a second window on your phone to review menus and make dinner reservations. But what if you decide that you want to change the dispositive provisions of your existing estate plan, or alternatively, create a brand new estate plan? Can you be just a few clicks away from making a legally enforceable bequest to dear Aunt Sally?

Shortly before tragically taking his own life, a resident of Queensland, Australia used a “Notes” app on his iPhone to create a series of documents that set forth his final farewells. One such electronic document was distinguishable due to the following features:

  • It contained the introductory phrase “This is the last Will and Testament. . . .”
  • It formally identified the decedent along with a reference to his address.
  • It demonstrated an intention to appoint the decedent’s brother as executor of his estate and nominated an alternative candidate.
  • It addressed the entirety of the decedent’s property and provided for its distribution at a time when the decedent had been contemplating his imminent death.
  • It authorized the executor to deal with the decedent’s affairs.
  • The decedent’s name appeared in type at the end of the document in a place where on a paper document a signature would appear, followed by the date and a repetition of the decedent’s address.

In a matter captioned Re: Yu, the Supreme Court of Queensland granted the decedent’s brother’s application, declared the electronic document to be the Will of the decedent, admitted it to probate and granted probate to the decedent’s brother.

As legislators and judicial officers grapple with documents that do not meet the traditional requirements of testamentary formalities, they should expect the clarion call to action of those who seek to rely on their smartphones to communicate testamentary intent and/or create a “do-it-yourself” estate plan. To date, however, no published cases within the United States have recognized a document created on a smartphone as a testamentary instrument.

Accordingly, when seeking to create an enforceable estate plan, a smartphone is best used as a means for placing a call to set up an appointment with a qualified estate planning professional.

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