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ROBIN MICHAEL (DECEASED) [2016] SASC 164 (2 November 2016)

Last Updated: 14 November 2016

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)

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In the Estate of ROBIN MICHAEL (DECEASED)

[2016] SASC 164

Judgment of The Honourable Justice Stanley

2 November 2016

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - MEANING OF “DOCUMENT”

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - DOCUMENT NOT EXECUTED BY MAKER

Application pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act) for admission to probate of a copy of a document bearing date 11 February 2015 as the will of the deceased.

The deceased, Robin Michael, died on 28 June 2015 at Risdon Vale in Tasmania. The application is made by the deceased’s son, Brett Michael (Brett).

There are two unusual features to the application. First, the original “document” is on the hard drive of the deceased’s laptop computer. Second, both the “document” on the laptop computer and the printed copy bear a digital or facsimile copy of the deceased’s signature.

The deceased made an earlier informal will in 2006. By that will the deceased provided that his sons, Brett and Benjamin Michael (Ben), were the sole beneficiaries of his estate. Both of them survived the deceased. They are the only persons whose interests will be adversely affected if the “document” is admitted to probate. Ben consents to the order sought by Brett Michael.

The application raises the following issues:

1. Is the will on the deceased’s hard drive of his laptop computer a “document” within the meaning of s 12 of the Act?

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?

Held (per Stanley J):

1. The computer file containing the document entitled “LAST WILL AND TESTaMENT” is a “document” within the terms of s 12(2) of the Act (at [26]).

2. The “document” expresses testamentary intentions of the deceased and the deceased intended the document to constitute his will (at [27]).

3. The facsimile signature found on the computer file document and its printout closely resembles the signature of the deceased. It was affixed to the computer document by the deceased as his signature and that he did so with the intention of giving effect to the document as his will (at [34]).

4. The document which the deceased intended to be his will is the digital document in the computer file found on his laptop computer (at [35]).

5. Admit to probate as the last will and testament of the deceased, Robin Michael, the copy of the document prepared by him and described as “LAST WILL AND TESTaMENT” found on the hard drive of the deceased’s laptop computer being exhibit “A” to the affidavit of Brett Michael sworn 16 March 2016 (at [36]).

Wills Act 1936 (SA) s 8, s 12(2), referred to.

In the Estate of Wilden (Deceased) [2015] SASC 9; (2015) 121 SASR 516; In the Matter of the Will of Mark Edwin Trethewey [2002] VSC 83; (2002) 4 VR 406; In Mahlo v Hehir [2011] QSC 243; Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594; In the Estate of Roger Christopher Currie, Late of Balmain  [2015] NSWSC 1098 ; In the Estate of Rohan Alexander Russell (Deceased) [2016] SASC 56; In Re Blakeley (Deceased) (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Kelly (Deceased) (1983) 34 SASR 370; In Re Male [1934] VicLawRp 67; (1934) VLR 318; In the Estate of Radziszewski (1982) 29 SASR 256, considered.

In the Estate of ROBIN MICHAEL (DECEASED)
[2016] SASC 164



Testamentary Causes jurisdiction

STANLEY J:

Introduction

1. This is an application pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act) for admission to probate of a copy of a document bearing date 11 February 2015 as the will of the deceased.
2. The deceased, Robin Michael, died on 28 June 2015 at Risdon Vale in Tasmania. The application is made by the deceased’s son, Brett Michael (Brett).
3. There are two unusual features to the application. First, the original “document” is on the hard drive of the deceased’s laptop computer. Second, both the “document” on the laptop computer and the printed copy bear a digital or facsimile copy of the deceased’s signature.
4. The deceased made an earlier informal will in 2006. By that will the deceased provided that his sons, Brett and Benjamin Michael (Ben), were the sole beneficiaries of his estate. Both of them survived the deceased. They are the only persons whose interests will be adversely affected if the “document” is admitted to probate. Ben consents to the order sought by Brett.
5. The application raises the following issues:
   1. Is the will on the deceased’s hard drive of his laptop computer a “document” within the meaning of s 12 of the Act?
   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?

Evidence

6. The applicant relies upon three affidavits he swore on 16 March 2016, 4 May 2016 and 14 July 2016 respectively. I am prepared to rely upon the evidence set out in those affidavits. They provide the necessary evidentiary foundation for the application. They disclose that the “document” came into being in the circumstances set out below.
7. The deceased was married to Kerry Lyn Michael (Kerry). The deceased and Kerry were on holiday in Tasmania in February 2015. On 11 February 2015 the deceased killed Kerry. Following the incident which resulted in Kerry’s death, the deceased returned to a caravan at the Devonport caravan park where he and Kerry were staying. He typed the “document” on his laptop computer. After typing the “document” the deceased accessed a digital copy of his signature which he inserted into the “document”.
8. Some years earlier the deceased signed a piece of paper which he then scanned and saved as an image file on his computer. This allowed him to place his digital signature into any document he produced on his laptop by opening the image file and copying and pasting the signature into the document.
9. The document prepared by the deceased in the caravan on 11 February 2015 provides:

LAST WILL AND TESTaMENT

Robin Michael
59 Sheoak Road
Belair SA 5052

This is the last will and testament of Robin Michael of 59 Sheoak Road, Belair, SA 5052 dated 11^th February 2015.
I assign Peter McCullough (my accountant), Brett Michael (my son), Ben Michael (my son) and Nathan Scott Cahill (my stepson) as Executors of my estate.
In the event that I die and my wife succeeds me, then my wish is that she receives 40% of the value of 59 Sheoak Road, Belair consistent with the Title, and that remaining assets except Goolwa and split 40:30:30 between my wife, and my sons Brett and Ben.
In the event that my wife does not succeed me, I wish for Goolwa to be taken by Brett and Ben as is consistent with the legal structure administrated by Peter McCullough, and that the remaining assets (combined between my wife and myself), be distributed between my natural sons, Brett and Ben, and my stepson, Nathan Scott Cahill. If Kerry’s will is contrary to this, I ask that the executors seek to arrange a distribution as close to the this as is possible from the assets remaining after an appropriate distribution as sought in my wife’s will.
This is my final wish.
Signed.
[Signature appearing].
Robin Michael
Witness

Peter McCullough
11^th February 2015.

10. The document sought to be propounded as an informal will is the printout of the “document” from the laptop computer containing the “digital signature” of the deceased.
11. Following the preparation of the “document”, the deceased sent an email to his accountant, Peter McCullough, forwarding the “document” and asking Mr McCullough to witness the document. The deceased copied the email to his sons, Brett and Ben, and his stepson, Nathan Cahill.
12. Given the terms of the “document”, I infer that at the time it was prepared, the deceased may have entertained some doubt as to whether Kerry was dead.
13. The deceased attempted suicide that day. He survived, was found and was taken to hospital. I think it likely that the deceased had suicide in contemplation when preparing the document. He was subsequently taken into custody by police. He committed suicide in Risdon Prison.
14. Police confiscated his laptop computer and subjected it to forensic examination. The examination found that the “document” created on the laptop on 11 February 2015 was not subsequently edited.

Document

15. At issue is whether the computer file from the deceased’s laptop including his digital signature is a “document” within the meaning of s 12(2) capable of being admitted to probate.
16. There is authority that supports this proposition.
17. In In the Estate of Wilden (Deceased)^[1] Gray J considered an application pursuant to s 12(2) where the issue was whether a DVD containing video footage of the deceased addressing his testamentary intentions was a document within the meaning of s 12(2). Gray J found it was a document for the purpose of the Act. He said:^[2]

The word “document” is not defined in the Wills Act. In In the Estate of Torr, Besanko J held that photographs could be admitted to probate as documents under section 12(2). In Mellino v Wnuk, Dalton J was satisfied that a DVD was a document for the purposes of the Succession Act 1981 (Qld). In Cassie v Koumans Windeyer J held that a video tape constituted a document for the purposes of the New South Wales wills legislation. His Honour stated:
For such a claim to succeed, it is necessary to show that there is a document which embodies the testamentary intentions of the deceased and which the deceased intended to operate, in this case, as an amendment to her 1977 will. The question then is whether or not the document does so operate. It has been decided in an earlier case of Treacey & Ors v Edwards; Estate of Edwards [2000] NSWSC 846; (2000) 49 NSWLR 739 that for the purposes of section 18A the definition of “document” under the Interpretation Act 1987 is relevant. In those circumstances it was held in that case that an audio cassette did constitute a document. I should follow that decision and consider it correct. I must say I do not consider this desirable or intended as it can lead to real uncertainty, but that is irrelevant to the consideration of this matter.
The decision in In the Estate of Torr, predated the introduction of a statutory definition of “document” in the Acts Interpretation Act 1915 (SA). Section 4(1) of that Act relevantly provides:
In this Act and in every other Act or statutory instrument, unless the contrary intention appears—
...
document includes—
(a) any paper or other material on which there is writing; and
(b) any map, plan, drawing, graph or photograph; and
(c) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(d) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
There is no contrary intention in the Wills Act that would prevent the general definition of the word document in the Acts Interpretation Act from having application. In my opinion, the DVD is a document for the purposes of section 12(2) of the Wills Act. It is an article or material from which sounds and images are capable of being reproduced with the aid of another article or device. I consider that a construction of the word document in s 12(2) that extends the range of possible documents constituting wills to wills made in non-traditional forms or using non-traditional media, including by a recording in the form of a DVD, is consistent with the liberal construction that is to be accorded to remedial legislation, such as s 12(2).
[Citations omitted].

18. Gray J ordered that the transcript of the DVD recording be admitted to probate as the last will of the deceased.
19. In In the Matter of the Will of Mark Edwin Trethewey^[3] there was an application for the admission to probate of an informal will which was produced from a computer file found on a computer hard drive. In the Victorian Supreme Court Beach J referred to the provisions of s 38 of the Interpretation of Legislation Act 1984 (Vic) which defined the word “document” to include:

Any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom.

20. The court held the file which comprised the will consisted of data on a disk which was capable of being reproduced from the disk so that the will file on the computer was held to be a “document” within the extended definition in the Interpretation of Legislation Act 1984 (Vic). On that basis the court found the computer file was a “document” for the purpose of s 9 of the Wills Act 1997 (Vic), the equivalent to s 12(2) of the Act.
21. In In Mahlo v Hehir^[4] the Queensland Supreme Court considered an application for admission to probate of a document in the form of a will typed on a home computer. By s 36 of the Acts Interpretation Act 1954 (Qld) a “document” was defined to include not only a paper document but also any document in electronic form. The document sought to be proved was a Microsoft Word document. McMurdo J found that the Microsoft Word document was a document for the purposes of s 18 of the Succession Act 1981 (Qld), the equivalent of s 12(2) of the Act.
22. In Alan Yazbek v Ghosn Yazbek & Anor^[5] Slattery J admitted a Microsoft Word document on a computer as the last will of the deceased. His Honour found that both the document in the computer and a printout constituted a “document” for the purposes of s 8 of the Succession Act 2006 (NSW), the equivalent of s 12(2) of the Act. Slattery J said:^[6]

The plaintiff relies on the meaning of "document" provided in Interpretation Act, s 21, "anything from which sounds, images or writings can be reproduced with or without the aid of anything else". An audio tape has been held to be a document within the meaning of Interpretation Act, s 21, being something from which sound could be reproduced with the aid of a cassette player: Treacey & Ors v Edwards; Estate of Edwards [2000] NSWSC 846; (2000) 49 NSWLR 739 at [27] per Austin J. I accept the plaintiff's argument that Will.doc is "something from which images or writings can be reproduced with or without the aid of anything else". Will.doc can be reproduced either with the use of Microsoft Word or by printing Will.doc using Microsoft Word's command and the operating system to print a copy of the electronic file. That Will.doc is a document for the purposes of Succession Act, s 8 is consistent with other States Supreme Courts decisions in relation to the equivalent legislation: cf Re Trethewey [2002] VSC 83, per Beach J, and Mahlo v Hehir [2011] QSC 243, per McMurdo J.

23. In In the Estate of Roger Christopher Currie, Late of Balmain^[7] Bergin CJ in Eq heard an application for a grant of probate of a document found on the deceased’s computer after his death. The court found that the deceased intended the computer document to operate as his will. It was admitted to probate.
24. In In the Estate of Rohan Alexander Russell (Deceased)^[8] I made the obiter observation that the transcript of an iPhone recording was capable of being admitted to probate as a will although, in the end, that issue became unnecessary to decide.
25. These authorities exhibit a contemporary approach to recognition of electronic documents, such as the computer file in this case, constituting testamentary documents for the purposes of the 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 his will.
26. I am satisfied on the evidence that the computer file containing the document entitled “LAST WILL AND TESTaMENT” is a “document” within the terms of s 12(2) of the Act.

Intention

27. I am satisfied on the basis of the evidence that the “document” expresses testamentary intentions of the deceased and the deceased intended the document to constitute his will.

Signature

28. Section 8 of the Act provides:

8—Requirements as to writing and execution of will
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a) it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e) the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).

29. The absence of a testator’s signature on a document sought to be proved as an informal will pursuant to s 12(2) is not an insurmountable obstacle to the document being admitted to probate.^[9]
30. In In the Matter of Mark Edwin Trethewey^[10] Beach J said:^[11]

That the document is not signed by the deceased does not prevent the document being admitted to probate. In Re Stewart, Cohen J was required to consider admitting an unsigned altered document to probate. He said:
It is not necessary that the document be signed or otherwise authenticated by the deceased. See Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 per Powell J at 539. In that case it was pointed out, also at 539, that the ultimate enquiry remains whether the document and the circumstances of its making lead to the conclusion that the deceased intended the document to constitute his will.
[Citations omitted].

31. In any event, the court in Trethewey held the fact that the deceased typed his name at the foot of the computer document was the equivalent of his signature. That approach was also taken by the courts in Yazbek and Currie.
32. A signature does not have to be in a particular form. In In Re Male^[12] Lowe J, referring to the Victorian equivalent of s 8 of the Act, said:^[13]

The section is, and always has been, open to very wide discussion in respect of what constitutes “signing”. I am satisfied by the cases to which I have been referred that the Courts have given a liberal interpretation to that term. Initials, and also a mark, have been held to be sufficient. In my opinion, the real test is whether what has been written by the testator was written by him as authentication of what precedes it as his will. Taking that test, and having regard to the circumstances of this case as disclosed by the affidavits before me, I am satisfied that the mark to which I have referred, made by the testatrix, was made by her with the intention of authenticating as her will all that precedes it in the document. I therefore order that the document be admitted to probate.

33. This passage was cited with approval in In the Estate of Radziszewski^[14] by Matheson J.
34. I am satisfied on the basis of the evidence of Brett Michael that the facsimile signature found on the computer file document and its printout closely resembles the signature of the deceased. I find that it was affixed to the computer document by the deceased as his signature and that he did so with the intention of giving effect to the document as his will.

Which document?

35. The document which the deceased intended to be his will is the digital document in the computer file found on his laptop computer. It is this document he typed and into which he inserted his digital signature. While he emailed copies of this document to his accountant, his sons and stepson, he did not insert his digital signature into those copies. The document exists on the hard drive of the deceased’s laptop computer. It is not practical, however, for the court to receive the document in that form. I propose to order that the document to be admitted to probate as the last will and testament of the deceased is the exhibit marked “A” referred to in the affidavit of Brett Michael sworn 16 March 2016 being a copy of the document on the hard drive of the deceased’s laptop computer. This is consistent with the approach taken by Gray J in In the Estate of Wilden where his Honour, having found that a DVD recording was a “document” within the meaning of s 12(2), admitted to probate a transcript of the DVD recording.

Conclusion

36. Pursuant to s 12(2) of the Act, I would admit to probate as the last will and testament of the deceased, Robin Michael, the copy of the document prepared by him and described as “LAST WILL AND TESTaMENT” found on the hard drive of the deceased’s laptop computer being exhibit “A” to the affidavit of Brett Michael sworn 16 March 2016.

^[1] [2015] SASC 9; (2015) 121 SASR 516.

^[2] [2015] SASC 9; (2015) 121 SASR 516 at 518 – 519.

^[3] [2002] VSC 83; (2002) 4 VR 406.

^[4] [2011] QSC 243.

^[5] [2012] NSWSC 594.

^[6] [2012] NSWSC 594 at [80].

^[7]  [2015] NSWSC 1098. 

^[8] [2016] SASC 56.

^[9] In The Estate of Blakeley (Deceased) (1983) 32 SASR 473; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Kelly (Deceased) (1983) 34 SASR 370.

^[10] [2002] VSC 83; (2002) 4 VR 406.

^[11] [2002] VSC 83; (2002) 4 VR 406 at 409.

^[12] [1934] VicLawRp 67; (1934) VLR 318.

^[13] [1934] VicLawRp 67; (1934) VLR 318 at 320.

^[14] (1982) 29 SASR 256 at 259.