This was the key issue of determination in a recent South Australia Supreme Court decision.
In Re Estate of Elizabeth Seabrooke (‘deceased’) [2023] SASC 122 (‘Seabrooke’), Elizabeth Seabrooke (‘the deceased’) died on 24 April 2022. Prior to her death, she executed a Will on an iPad, signed with an iPad pencil and executed in the presence of two witnesses who did the same. The deceased then scanned the electronic Will and sent it to herself.
The deceased named her daughter Natalie Beresford as executor (“the executor”) of the Will. On application to have the will admitted to probate, the executor sought to admit a printed copy of the scanned electronic will as the last will and testament of the deceased. The original electronic will could not be located on the iPad on which it was prepared and signed, however a copy was saved on a USB which had been lodged to the Registry. The matter was referred from the Registrar to the Supreme Court for determination. There was no argument that the Will did not contain the necessities required such as a clause revoking all prior wills and codicils as well as a named executor and beneficiaries of the deceased’s property and assets. What was left for the Court to determine was whether a copy of the ‘document’ executed as a last will and testament should be admitted to probate.
Was the e-signed Will a ‘document’?
The Legislation Interpretation Act 2021 (SA) stipulates in section 4 that a document includes “anything from which…writing can be reproduced with or without the aid of anything else”. The Court adopted the legislative interpretation above. The requirement was fulfilled by the deceased as she had affixed her electronic signature to the Will
The lost original electronic version of the Will
A court can recognise a lost will and admit it to probate provided[1]:
- There is proof that the original will existed;
- That the original will was duly executed, or, if the original will did not fulfill the formalities required by legislation, that it satisfies the legislative requirements allowing it as an informal will to be admitted to probate;
- That there is evidence of the terms of the original will
- That the copy will is an accurate and complete copy of the original will
- That thorough searches have been conducted to find the original will including publishing advertisements regarding the missing original will
- That the original will revoked all pre-existing wills;
- That the circumstances surrounding the absence of the original will are adequately explained;
- That all persons prejudiced by the application, if it is granted, have consented to the application.
A PDF document contained the scanned copy of the electronic version of the Will which the executor emailed to herself. The Court was satisfied that this document was the printed copy of the electronic will duly executed before witnesses and that it sets out the testamentary intentions of the deceased through the affixation of the deceased’s signature.
In accordance with the evidence provided by the applicant, the Court in satisfaction ordered the PDF document to be admitted to probate, pursuant to s 8 of the Administration and Probate Act 1919 (SA)
Key Takeaways
Seabrooke showcases the importance of ensuring Wills are properly executed in the event that unforeseen circumstances occur. Having a copy of the last will and testament as an executor can ensure that where original copies cannot be located, copies can still be admitted to probate. The case also demonstrates how obtaining advice from a lawyer about drafting a Will might save your beneficiaries the huge amount of time and cost of a court case later on.
[1] Re Estate of Hall (deceased) [2011]
