The original will was created and executed on an iPad
In a recent decision, the Supreme Court of South Australia ruled that a copy of an electronic will, the original having been created and executed on an iPad, is valid and should be admitted for probate.
Elizabeth Seabrooke passed away in 2022, leaving behind a PDF document titled 'doc 35820620181019122607.pdf,' which contained a scanned copy of an electronic version of a will document dated 15 October 2018. This document, prepared on an iPad and digitally signed by Seabrooke, was the subject of debate.
The question before the court was whether this electronic will was valid, and if so, whether a copy should be admitted to probate, as the original electronic document could not be located on the iPad it was created on. The will document contained a general revocation clause for all prior wills and codicils. The document also made four specific bequests of $25,000 each to Seabrooke's grandchildren.
The document sought to be admitted for probate was a copy of a document downloaded from the iPad tablet belonging to Natalie Basford, the daughter of the deceased and the named executor in the contested will. The deceased executed the original document on an iPad using an iPad pencil to affix her signature to the final page and was witnessed in the same way. The electronic will cannot be located on the iPad on which it was prepared and signed.
The SA Supreme Court considered recent case law about the making of a will in an electronic form and found that they support a contemporary approach to recognition of electronic documents, such as a computer file, constituting testamentary documents for the Wills Act, at least where evidence provides the necessary proof that the author of the electronic document is the testator and that the testator intended the document to be their will.
The court further explained that a court will recognise a lost will and admit it to probate in certain circumstances. The court emphasised that in applying the balance of probabilities standard in considering applications to admit a lost will to probate, the court must be vigilant, being fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made.
Additionally, once the court is satisfied that the document sought to be propounded as the lost will of the deceased existed, the next issue the court must consider is whether the document itself or so much of the document as may be proved, was intended by the deceased to constitute her will. The court must be satisfied that the deceased's intentions were embodied in the document sought to be admitted to probate. This is to be decided by reference to the document itself, the circumstances regarding it and any other relevant circumstances.
Furthermore, the court must be satisfied with two related matters—the terms of the testamentary instrument and whether the terms included a provision revoking all previous wills. If the court is satisfied with these matters, it must consider the presumption of revocation.
After carefully reviewing the evidence, the court was satisfied that the applicant for probate, Natalie Basford, downloaded the document as a PDF onto her iPad, which automatically allocated a file number to the document once it was saved. The applicant did not print a hard copy of the document as she intended the document to be signed electronically.
After the deceased and the witnesses signed electronically, the applicant emailed herself the executed document as an attachment with the original PDF file stored on her iPad. An executed copy of the document was given to the deceased, but that copy could not be found among the deceased's papers following her death.
The court ultimately ruled that the document must be admitted to probate. The electronic document was forensically examined by a computer expert who could not find the will document on the applicant's iPad. He considered the PDF file titled 'doc 35820620181019122607.pdf' as a scanned copy of the electronic will.
The applicant explained that as a matter of routine in her work as an insurance broker, once a client had signed the insurance proposal documents, the applicant deleted those client files from her iPad to avoid clutter and unwanted storage on the device. She said it was plausible that the electronic will could not be found on her iPad after forensic examination because she accidentally deleted the file during a routine clearing of unwanted files on her iPad.
The court ruled that the electronic will, although it was only executed and witnessed on the final page, met the law's formal requirements. The court accepted the applicant's evidence and reason for the inability to find the will document on her iPad. The court noted that the applicant's interest in the estate of the deceased will be reduced if the will document is admitted to probate, eliminating suspicions that would otherwise arise naturally from the absence of the original electronic will.
The court found that the will document's form and content replicate the electronic will executed by the deceased on the applicant's iPad on 15 October 2018. Additionally, the court was satisfied that the scanned copy titled 'doc 35820620181019122607.pdf' is the printed copy of the electronic will prepared by the applicant at the deceased's direction and duly executed by her before attesting witnesses. The court said that in affixing her electronic signature to the document, the deceased intended that document to constitute her will.
The court was further satisfied that sufficient searches had been conducted to find the electronic will and that the circumstances surrounding the absence of the electronic will have been adequately explained. The court also found that the presumption of revocation had been rebutted.
Accordingly, the court ruled that the document the deceased intended to be her will was the digital document on the applicant's iPad. The document cannot be found, but the court ruled there was a true copy of that document. As a result, the court directed the registrar to admit this PDF document titled "doc 35820620181019122607.pdf" to probate.