Academic journal article The Journal of New Business Ideas & Trends

Succession Law Keeping Pace with Changes in Technology and Community Expectations - Informal Wills

Academic journal article The Journal of New Business Ideas & Trends

Succession Law Keeping Pace with Changes in Technology and Community Expectations - Informal Wills

Article excerpt

Abstract

Purpose - The purpose of this paper is to provide insights into recent developments in the way the law of succession allows people to use new technologies to document their testamentary intentions in an informal way.

Design/methodology/approach - This article considers one area in which the law has arguably kept good pace with advances in society's expectations and technological change - the law of succession. This article examines the legislative reforms in Queensland and other jurisdictions permitting the recognition of informal wills and the decided cases in the area. In particular, the article examines the decision in a Queensland Supreme Court case in which the court recognised the validity of a will made on an iPhone.

Research limitations/implications - This is a doctrinal analysis, not an empirical study, and accordingly is limited to providing details specific to the legislation and the court cases selected.

Keywords: Informal wills; succession; technological change; formal requirements of wills; iPhone.

JEL Classifications: K10; K20

PsycINFO Classifications: 4210

FoR Codes: 1801

Introduction

The law is often criticised for being too slow to adapt to changing community expectations and changes in technology. There is, however, one area in which the law is arguably keeping pace is the law of succession - the law governing wills and rights to inherit the property of deceased persons.

A will is a revocable document or collection of documents in which a person sets out the manner in which his or her property is to be distributed upon his or her death. As Hallen J at paragraph [242] said In Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895:

It is not necessary that the document said to be a Will should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient if it is intended to dispose of property, or of rights of the deceased, in a disposition that is to take effect upon death, but until then is not to take effect but is to be revocable. Although usual, it is not legally essential to find a clear statement identifying the document as a Will.

In legal parlance, these instructions as to how a person wishes their property to be distributed are known as "testamentary intentions". A person's will is often referred to as their "last Will and Testament". A will is described as a "last will" because it is possible for one to have their testamentary intentions expressed in more than one document and it is possible for a person to make more than one will over the course of a lifetime to account for changing circumstances. The reference to a "last will" indicates that the person intends this document to supplant any former will he or she might have made. Such a document will ordinarily commence with the words, "I revoke all form wills and codicils", whereby a "codicil" is a document which amends, adds to explains or modifies a will or part of one.

The making of a will is ordinarily governed by strict formal requirements. In all Australian states and territories, these formal requirements are that, to be valid, a will must be in writing and signed by the testator in the presence of attesting witnesses who actually see the testator sign. While the formal requirements are an appropriate safeguard of the interests of beneficiaries entitled to take property under the will, there are times when it is necessary and appropriate for the courts to recognise a will made otherwise than in accordance with these formal requirements as being legally valid. Such a will is known as an informal will. The term, "informal will" is not a term which is defined in the legislation. In practise, the term is used to refer to wills which have not been created or executed in accordance with the formal requirements of wills that are imposed by the relevant legislation. An informal will might be in the form of a handwritten note, a statutory declaration, a letter, or perhaps any other means of recording testamentary intentions. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.