Computer Will upheld

computer-2In the Estate of Robin Michael (Deceased) [2016] SASC 164, the Supreme Court of South Australia held that a computer document was to be admitted to probate as the last will and testatment of the deceased.

The Court itemised the following main issues to be determined were:

  1. Was the will on the deceased’s hard drive of his laptop computer a “document” within the meaning of s 12 of the Wills Act 1936 (SA)?
  2. Did the deceased intend the “document” apparently prepared by him on his laptop to be his will?
  3. Is the digital or facsimile signature recorded on the “document” able to be accepted as the deceased’s signature?
  4. Which “document” did the deceased intend as his will?
  5. If an order is to be made, what is the proper form of the order in these circumstances?

The deceased had typed the document in February 2015, whilst on holiday with his wife.  Sadly, during that holiday, the deceased killed his wife and shortly before attempting suicide, he typed his will on his laptop computer. He was found later, admitted to hospital and subsequentlytaken into custody.  He committed suicide in prison.

Some years prior, the deceased had previously signed a piece of paper and scanned that image to his computer allowing him to place the image as his “digital signature”on the document purporting to be his will.  The computer was forensically examined and it was determined that the document had not been edited after it’s creation on 11 February 2015.

In it’s determiniation of the issue, the Court followed the Queensland decision in In Mahlo v Hehir [2011] QSC 243, where a will typed on a home computer was determined to be document for the purposes of our section 18 of the Succession Act 1981, being the equivalent provision of s12(2) of the South Australan Wills Act 1936. Following this authority, Stanley J referrenced the more recent cases of Alan Yazbek v Ghosen Yazbek & Anor [2012] NSWSC 594 and In the Estate of Roger Christopher Currie, Late of Balmain [2015] NSWSC 1098 of which both had found that computer documents were upheld as the last will of the deceased in those cases.

The Court found that whilst the digital signature appeared at the foot of the document, it was not necessarily a contentious issue to overcome as there was enough authority to permit the Court to admit a document without a signature.  The Court referred to the authority in the case of In the Matter of Mark Edwin Trethewey (2002) 2 VR 406 where the Court held in that case that a unsigned dcument does not prevent the document being admitted to probate and that the deceased typing his name at the foot was the equivalent; this was also the case in Yazbek and Currie mentioned above. Accordingly, the Court was satisfied that the digital signature was affixed with the intention of giving effect to the document as his last will.

You can read the case here.


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