Want your last wishes honoured? Don’t draft your will in your Notes app

It can be easy to forgo the legalities and formalities of planning for life after you’re gone – after all, you won’t be here for it. Yet in the interest of ensuring any inheritance makes its way to your loved ones as you intend it to, your will must be legally sound.

A valid will protects your final wishes from being misrepresented, misconstrued or misinterpreted, providing your nearest and dearest with the peace of mind that your estate is being divided as you intended.

While it might be tempting to consider leaving the legalities for “later on” and just doing it yourself, there are good reasons why you shouldn’t attempt to prepare your will yourself, for example, by just jotting down your last wishes on a Post-it note (something that actually occurred in 2013).

A DIY will or “informal will” is when someone chooses not to formally prepare their will in accordance with legal requirements. Instead, they communicate their wishes through simpler means such as a handwritten letter, a text message, a video recording, the use of an online will creation service, or even a digital note left on an iPhone.

The latter serves as the latest cautionary tale I share to discourage anyone from taking a DIY approach to estate planning if they wish to protect their loved ones from a financially and emotionally demanding litigation process upon their passing.

The NSW Court of Appeal recently heard a case that centred around an informal will prepared by a 79-year-old businessman on the Notes app of his iPhone – an approach to estate planning I would implore you to avoid.

In this instance, the unorthodox “will” led to a three-year legal battle between the two primary beneficiaries, debating the legitimacy of the informal document as an expression of intent for the distribution of the deceased’s estate.

After a drawn-out legal process, the iPhone note was, in the end, determined by the Court to satisfy the requirements of an “informal will”, although it fell short of the legal requirements.

Though often contested, these informal documents can be declared valid by a court if it can be shown (on the evidence) that the document expressed the deceased’s testamentary wishes, and they intended the document to be their final will.

So, what can we learn from this? Despite the result in this instance landing in favour of the DIY will, running the risk of the beneficiaries of your will having to dip into their own piggy banks to pay for legal costs before accessing their inheritance is counterintuitive. The costs of litigating matters like these can be significant.

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