IN THE ESTATE OF ELIZABETH SEABROOKE (DECEASED)

[2023] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

IN THE ESTATE OF ELIZABETH SEABROOKE (DECEASED)

[2023] SASC 122

Judgment of the Honourable Justice Stanley  

11 September 2023

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

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - OTHER CASES

Referral from the Registrar pursuant to s 8 of the Administration and Probate Act 1919 (SA).

The deceased, Elizabeth Seabrooke, died on 24 April 2022 at Woodville South. The referral concerns whether a printed copy of a PDF document titled ‘doc 35820620181019122607.pdf’ containing the scanned copy of the electronic version of a will document dated 15 October 2018 should be admitted to probate as the deceased’s last will and testament.

The document sought to be admitted to probate is a copy of a document downloaded from the iPad tablet belonging to Natalie Basford, the named executor in that document.  Ms Basford is the daughter of the deceased and she is the applicant for probate.

There are two issues on this referral. The first is whether the electronic document executed and witnessed on the iPad was a valid will. The second is whether that document now having been lost, a copy should be admitted to probate.

Held:

1. I would admit the will document to probate pursuant to s 12(2) of the Wills Act 1936 (SA). I am satisfied that the scanned copy titled ‘doc 35820620181019122607.pdf’ is the printed copy of the electronic will prepared by the applicant at the deceased’s direction and duly executed by her before attesting witnesses on 15 October 2018.

2. Pursuant to s 8 of the Administration and Probate Act 1919 (SA) I would direct the Registrar to admit this PDF document titled “doc 35820620181019122607.pdf” to probate.

Acts Interpretation Act 1915 (SA); Administration and Probate Act 1919 (SA) s 8; Legislation Interpretation Act 2021 (SA); Wills Act 1936 (SA), referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Cahill v Rhodes [2002] NSWSC 561; Dalton v Dalton & Anor [2007] WASC 249; Dalton v Dalton Unreported, Supreme Court of Western Australia, 24 September 1997; Gruzdeff v Lough Unreported, Supreme Court of New South Wales, 22 August 1997; In Re Estate of Hall (deceased) [2011] SASC 117; In Re Trethewey (2002) 4 VR 406; In Re White; Montgomery & Anor v Taylor [2018] VSC 16; In the Estate of Gibbs [2012] SASC 230; In the Estate of Graham (1978) 20 SASR 198; In the Estate of Ralston Unreported, Supreme Court of New South Wales, 12 September 1996; In the Estate of Robin Michael (deceased) [2016] SASC 164; In the Estate of Wilden (deceased) (2015) 121 SASR 516; McCauley v McCauley (1910) 10 CLR 434; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Orifici v Orifici & Ors [2007] WASC 74; Payten v Perpetual Trustee Company [2005] NSWSC 345; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; The Estate of Roger Christopher Currie [2015] NSWSC 1098; Welch v Phillips [1836] 12 ER 828; Whiteley v Clune (No 2) the Estate of Brett Whiteley Unreported, Supreme Court of New South Wales, 13 May 1993; Yazbek v Yazbek [2012] NSWSC 594, considered.

IN THE ESTATE OF ELIZABETH SEABROOKE (DECEASED)
[2023] SASC 122

Testamentary causes jurisdiction

Introduction

1. This is a referral from the Registrar pursuant to s 8 of the Administration and Probate Act 1919 (SA) for direction from a judge where it appears doubtful whether probate should be granted or whether the Registrar should exercise any power or discretion appertaining to her office. The late Elizabeth Seabrooke (the deceased) died on 24 April 2022 at Woodville South. At issue is whether a printed copy of a PDF document titled ‘doc 35820620181019122607.pdf’ containing the scanned copy of the electronic version of a document dated 15 October 2018 (the will document) should be admitted to probate as the deceased’s last will and testament. The document sought to be admitted to probate is a copy of a document downloaded from the iPad tablet belonging to Natalie Basford, the named executor in that document. Ms Basford (the applicant) is the daughter of the deceased and she is the applicant for probate.

2. The original electronic document was executed by the deceased on an iPad using an iPad pencil to affix her signature to the final page and was witnessed in the same way.

3. The electronic will cannot now be located on the iPad on which it was prepared and signed.  A copy of the electronic will was saved to a USB which has been lodged in the Registry.  It appears nothing else was saved to the USB.  The print out of that copy is the will sought to be proved. 

4. There are two issues on this referral. The first is whether the electronic document executed and witnessed on the iPad was a valid will. The second is whether that document now having been lost, a copy should be admitted to probate.

   The will document

5. The will document contains a general revocation clause for all prior wills and codicils.  The deceased appointed the applicant as her sole executor and granted the residue of her estate to her son Leonard Seabrooke (Leonard) and the applicant in equal shares.  The document made four specific bequests of $25,000 each to her grandchildren Caitlyn Rose Basford, Owen David Basford, Alexios Kasper Seabrooke and Artemis Freya Seabrooke.  The document then provided various directions and wishes in relation to the care of the deceased’s pets.

   The estate

6. The assets of the estate comprise real estate at Semaphore Park with a Valuer-General valuation of $385,000 and personal estate both in and outside the State of $29,698.  Disclosed liabilities of the estate are $94,968.  As a result the net value of the estate disclosed is not quite $320,000.

   An electronic will

7. In In the Estate of Robin Michael (deceased),[1] I considered whether an informal will should be admitted to probate pursuant to s 12(2) of the Wills Act 1936 (SA) (the Act). The informal will was a copy of a ‘document’ on the hard drive of the deceased’s laptop computer, and both the ‘document’ on the laptop computer and the printed copy, bore a digital or facsimile copy of the deceased’s signature. Adopting the approach taken in In the Estate of Wilden (deceased),[2] by Gray J, I found that the testator in affixing his facsimile signature on the digital computer file document, and hence on the print out, did so with the intention of giving effect to the document as his will. 

   [1] [2016] SASC 164.

   [2] (2015) 121 SASR 516.

8. In Wilden Gray J said:[3]

   [3] [2015] SASC 9 at [10]-[12]; (2015) 121 SASR 516 at 518-519.

   The word “document” is not defined in the Wills Act.  In In the Estate of Torr,[4] Besanko J held that photographs could be admitted to probate as documents under section 12(2). In Mellino v Wnuk,[5] Dalton J was satisfied that a DVD was a document for the purposes of the Succession Act 1981 (Qld). In Cassie v Koumans,[6] Windeyer J held that a video tape constituted a document for the purposes of the New South Wales wills legislation.  His Honour stated:[7]

   [4]     In the Estate of Torr (2005) 91 SASR 17.

   [5]     Mellino v Wnuk [2013] QSC 336.

   [6]     Cassie v Koumans; Estate of Cassie [2007] NSWSC 481.

   [7]     Cassie v Koumans; Estate of Cassie [2007] NSWSC 481, [9].

   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) 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,[8] predated the introduction of a statutory definition of “document” in the Acts Interpretation Act 1915 (SA). Section 4(1) of that Act relevantly provides:

   [8]     In the Estate of Torr (2005) 91 SASR 17.

   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 section 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 section 12(2).[9]

   [9]     In the Estate of Graham (1978) 20 SASR 198, 202; In the Estate of Davis (2011) ASTLR 572 ay [22].

9. Since the judgment in Wilden the Acts Interpretation Act 1915 (SA) (AIA) has been repealed and replaced by the Legislation Interpretation Act 2021 (SA) which in s 4 contains an inclusive and more expansive definition of ‘document’ than was found in the AIA. That definition includes “anything from which… writing can be reproduced with or without the aid of anything else”.

10. Having surveyed recent authority in relation to the making of a will in an electronic form,[10] I consider that they support a contemporary approach to recognition of electronic documents, such as a computer file, 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 or her will.[11]

    [10]   In Re Trethewey (2002) 4 VR 406; Yazbek v Yazbek [2012] NSWSC 594; The Estate of Roger Christopher Currie [2015] NSWSC 1098; and In Re White; Montgomery & Anor v Taylor [2018] VSC 16.

    [11]   In the Estate of Robin Michael (deceased) [2016] SASC 164 at [25].

    A lost will

11. It is clear that in certain circumstances a court will recognise a lost will and admit it to probate. The relevant principles concerning granting probate of a lost will were summarised in In Re Estate of Hall (deceased),[12] by Gray J as follows:

    [12] [2011] SASC 117 at [15].

    ·that the original will existed;[13]

    ·that the original will was duly executed;[14] or, if the original will did not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;[15]

    ·that there is evidence of the terms of the original will;[16]

    ·that the copy will is an accurate and complete copy of the original will;[17]

    ·that thorough searches have been conducted to find the original will,[18] including publishing advertisements regarding the missing original will;[19]

    ·that the original will revoked all pre-existing wills;[20]

    ·that the circumstances surrounding the absence of the original will are adequately explained;[21]

    ·that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[22] and

    ·that the presumption of revocation does not arise or has been rebutted.[23]

    [13]   In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718; In the Will of Molloy [1969] 1 NSWR 400.

    [14]   Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Gair v Bowers (1909) 9 CLR 510.

    [15] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].

    [16]   Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.

    [17]   In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.

    [18]   In the Estate of Engelhardt Deceased [2010] SASC 196, [20].

    [19]   In the Estate of Roediger Deceased [1967] SASR 118, 120.

    [20]   Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.

    [21]   In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.

    [22]   In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.

    [23]   Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604.

12. In Cahill v Rhodes,[24] Campbell J set out the applicable principles, allowing for the changes affected by the equivalent of section 12 of the Act in the following terms:

    First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.

    [24] [2002] NSWSC 561 at [55].

13. While the burden of proof remains the usual civil standard of balance of probabilities, the authorities emphasise the need for clear and convincing evidence of the existence of a lost will. 

14. In The Estate of Ralston,[25] Hodgson J said:

    ... there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way... or where the Court is asked to make a finding concerning a legal transaction by a deceased person...

    However, this does not mean that what is required is other than proof on a balance of probabilities.  In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate...

    (Citations omitted)

    [25]   Unreported, Supreme Court of New South Wales, 12 September 1996.

15. Hodgson J cited as authority for this proposition the High Court’s judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[26] which is an application of the Briginshaw test.[27]  In applying the balance of probabilities standard in considering applications to admit a lost will to probate the Court must be vigilant, being fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made.[28]  In my view, these considerations apply with particular force where the evidence the Court is asked to act upon is purely oral. 

    [26] (1992) 67 ALJR 170 at 170-171.

    [27]   Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

    [28]   Orifici v Orifici & Ors [2007] WASC 74 per Hasluck J at [59]; Dalton v Dalton unreported, Supreme Court of Western Australia, Parker J, 24 September 1997; see also Dolan v Dolan & Anor [2007] WASC 249 per Murray J at [15]-[17] applying the Briginshaw test.

16. I do not regard anything said subsequently in Gruzdeff v Lough,[29] by Hodgson J as detracting from this proposition.  While parol evidence may be adduced to prove the contents of a lost will,[30] the court must take particular care in considering whether such evidence leaves it reasonably satisfied “not just as to the existence of the will but as to its contents”.

    [29]   Unreported, Supreme Court of New South Wales, Hodgson J, 22 August 1997.

    [30]   Whiteley v Clune (No 2) the Estate of Brett Whiteley unreported, Supreme Court of New South Wales, Powell J, 13 May 1993.

17. If the court is satisfied that the document sought to be propounded as the lost will of the deceased existed, the next issue the court must consider is whether the document itself, or so much of the document as may be proved,[31] was intended by the deceased to constitute her will.  The court must be satisfied that the document sought to be admitted to probate, or at least so much of the contents of the document as the court is satisfied has been proved, purports to embody the deceased’s testamentary intentions.  That means the deceased intended the document, without more on her part, to take effect as a testamentary disposition of her property upon her death.  This is to be decided by reference to the document itself, the circumstances regarding its contents (including such marks or handwriting as may appear on it) and any other relevant circumstances.  While each case must depend upon its own facts, the greater the departure from compliance with the formal requirements for the making of a will, the more difficult will it be for the court to be satisfied that the deceased intended the reconstructed document to be her will.[32] 

    [31]   Whiteley v Clune (No 2) the Estate of Brett Whiteley unreported, Supreme Court of New South Wales, Powell J, 13 May 1993; Payten v Perpetual Trustee Company [2005] NSWSC 345 per Austin J at [110]– [111] although see the qualification of this proposition in Gruzdeff v Lough (unreported judgment, Supreme Court of New South Wales, Hodgson J, 22 August 1997).

    [32]   Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539-540.

18. Next the court must be satisfied of two related matters:  the terms of the testamentary instrument and whether the terms included a provision revoking all previous wills. 

19. If the court is satisfied of these matters it must then turn to consider the presumption of revocation.  This involves two issues:  does the presumption arise and, if so, is it rebutted.  The presumption was described in Welch v Phillips in the following terms:[33]

    ... If a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. ...

    [33]   Welch v Phillips [1836] 12 ER 828 at 829 cited by Griffiths CJ and O’Connor J in the High Court in McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 at 438 and 446.

20. In The Estate of Gibbs Gray J made the following observations regarding the rebuttal of the presumption.[34]

    The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[35]  It is the applicant who carries the onus of rebutting the presumption.[36]  Further, when determining if the presumption has been rebutted, the court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.[37]

    [34]   In the Estate of Gibbs [2012] SASC 230 at [31]; (2012) 115 SASR 182 at 190.

    [35]   Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1829) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].

    [36]   Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see e.g. Allan v Morrison [1900] AC 604.

    [37]   Gordon v Beere [1962] NZLR 257, 266.

    The evidence

1. The applicant read the following affidavits of:

   ·Natalie Basford dated 22 June 2022 (FDN 1), 16 December 2022 (FDN 11), and 22 June 2023 (FDN 13);

   ·Craig David Basford dated 22 June 2022 (FDN 4);

   ·Jason David Harris dated 29 June 2022 (FDN 6);

   ·Martha Ioannides dated 18 October 2022 (FDN 9), and a further affidavit also dated 18 October 2022 (FDN 10) and an affidavit dated 22 June 2023 (FDN 14); and

   ·Leonard Seabrooke dated 4 July 2023 (FDN 15).

2. The deceased died a divorced person leaving two children, Leonard and the applicant. 

3. The death certificate records no registered relationship or de facto status, and the applicant deposed to the fact that there was no domestic partner of the deceased at the date of her death.  No administration or protection orders have been disclosed as part of the application for probate.

4. The deceased made an earlier paper will dated 17 August 1993.  That consisted of a single page will kit form which on its face appears to be formal, the original of which cannot now be located.  By that will the deceased appointed her father James and Leonard as executors.  The applicant and Leonard were named as beneficiaries of the estate after specific legacies to the deceased’s parents, both of whom pre-deceased her, and to her brother James Charles Straton Cooper (Mr Cooper).  The specific legacy to Mr Cooper was two Chinese silk prints.  There is evidence they were valued at $1,711.40.  The deceased and Mr Cooper fell out in 2012 after she had loaned him $3,000 which he refused to repay.  Since then he has been estranged from the family. 

5. It appears that the applicant, Leonard and Mr Cooper are the only persons whose interests will be adversely affected if the will document is admitted to probate.  Whether on an intestacy or pursuant to the 1993 will, the applicant and Leonard’s interests as the residuary beneficiaries will be adversely affected because of the specific bequests to the grandchildren in the will document.  Mr Cooper’s interests will be adversely affected if the 1993 will is not admitted to probate as he will be deprived of the specific bequest made in his favour by the 1993 will. 

6. Leonard is aware of the application for the grant of probate of the will document and has indicated his consent to the application in writing.[38]  The applicant is propounding the will document.  Self-evidently she wants the will document admitted to probate.  Despite extensive efforts, as described in the affidavit of the applicant’s solicitor Ms Ioannides dated 22 June 2023, Mr Cooper cannot be found. 

   [38]   FDN 10.

7. In 2018 prior to an impending surgical procedure the deceased told the applicant that she wanted to update her will. The applicant purchased an electronic will kit form from lawdepot.com. On 15 October 2018 at the deceased’s home the applicant completed the will document on her iPad on the instructions and at the direction of the deceased. 

8. I am satisfied that the deceased read the completed will and approved its contents.[39]  The applicant downloaded the document as a PDF onto her iPad which automatically allocated a file number to the document once it was saved.

   [39]   FDN 1 paras [11]-[13].

9. The applicant did not print a hardcopy of the document at that stage as she intended the document would be signed electronically.

10. On the same day the deceased signed the final page of the electronic document using an iPad pencil on the iPad before two subscribing witnesses Craig David Basford and Jason David Harris, all present at the same time, who then also signed the final page of the electronic document with their respective signatures.  They used the same iPad pencil on the iPad in the presence of the deceased.  The applicant was also present when this occurred.

11. On 19 October 2018 the applicant emailed the executed document as an attachment with the original PDF file being stored on her iPad to herself at an email address, Big Shed Brewing.  Subsequently the applicant was unable to start up her iPad.  Nonetheless, she was able to print out a copy of the executed document from the file attachment to her email at her Big Shed Brewing email address.  An executed copy of the document was given to the deceased, but that copy cannot now be found amongst the deceased’s personal papers following her death.  Neither can the original of the 1993 will.

12. For the reasons that follow I consider the Registrar should admit the document to probate. 

13. The electronic document has been forensically examined by a computer expert Mr Jean-Pierre du Plessis who has provided an expert report.  He could not find the will document on the applicant’s iPad.  He considers the PDF document file titled ‘doc 35820620181019122607.pdf’ is a scanned copy of the electronic will made on 15 October 2018.  Further he found evidence of three entries on the applicant’s iPad made on 17 October 2018.

14. By way of response to the report of Mr du Plessis the applicant explained the process by which the electronic document was brought into being and executed.[40]  The applicant addressed the findings of Mr du Plessis.  She gave evidence that on 15 October 2018 she used her work iPad to prepare a will for the deceased.  The applicant kept work files on her iPad.  She said that as a matter of routine in the course of her work as an insurance broker, once a client had signed the insurance proposal documents and a matter had been finalised, the applicant deleted those client files from her iPad to avoid clutter and unwanted storage on the iPad.  She deposed to her view that it was plausible, although she cannot say with certainty, that the electronic will could not be found on her iPad after forensic examination because she accidentally deleted the file during a routine clearing of unwanted files on her iPad.

    [40]   FDN 1, FDN 11, FDN 13.

15. The applicant deposed that on that same date she typed the information into the will precedent document on the lawdepot website by using the keyboard attachment to her iPad.  She recalls that upon completion of the document an option appeared to either ‘Print’ or ‘Download’ the electronic will.  At the time she was unable to print the completed will document as she had prepared it at the deceased’s home where she did not have access to a printer.  At that time her work printer was specifically set up for printing from her iPad.

16. The applicant says she downloaded the electronic will onto her iPad which saved locally into her ‘Downloads’ folder, accessible through the Apple app ‘files’.  The electronic will came converted as a PDF file from the lawdepot portal.  In order to open the electronic will file she had to go to her ‘Downloads’ folder to access it.  Her practice at the time when signing documents on her iPad was to use the function ‘Mark-Up’ tool to sign with the iPad pencil.  She always used this function on her iPad for signing documents.  This was the process she followed for signing the electronic will on 15 October 2018.  Once the electronic will was signed by the deceased and the two subscribing witnesses, the applicant pressed ‘Done’ and the document was auto saved onto her iPad.  The electronic will was signed at the office of the Big Shed Brewing Concern where the subscribing witnesses worked.[41]  On that day the applicant did not have access to a printer as her iPad was set up to print from her work printer.  That explains why a copy of the executed electronic will was not printed at the time. 

    [41]   FDN 1 paras [16]-[17].

17. The following day the deceased accompanied by the applicant attended the Calvary Hospital for surgery.   The deceased was discharged the following day and returned to her home where she was cared for by the applicant.  As a result the applicant did not return to her place of work until 19 October 2018 which was the first opportunity she had to print a copy of the executed electronic will from her work iPad.  She then scanned it and emailed it herself to avoid the risk of losing the electronic will and to ensure she had a record of it.  That explains why the document title ‘doc 35820620181019122607.pdf’ was created on 19 October 2018, four days after the execution of the electronic will.

18. The applicant further says in her evidence that she provided the deceased with a printed copy of the electronic will that she scanned to herself on the 19 October 2018.  However she has been unable to find that copy amongst the deceased’s personal papers.

19. The applicant has given evidence that she did not edit the electronic will after its execution on 15 October 2018.  She believes the deceased would not have amended the will document or made any further will without telling her.  While the applicant cannot explain the three entries found by Mr du Plessis to have been made on 17 October 2018 she deposed that the will document is now in the same form and content as the electronic will executed on 15 October 2018. 

20. The electronic will, although it was only executed and witnessed on the final page, met the formal requirements of s 8 of the Act.

21. There is no reason not to accept the applicant’s evidence in that regard, notwithstanding Mr du Plessis’ inability to find the will document on the applicant’s iPad and his opinion that there is evidence of three entries on the iPad dated 17 October 2018.  I accept her evidence because, for the reasons previously explained, the applicant’s interest in the deceased’s estate will be reduced if the will document is admitted to probate.  This eliminates the suspicion that would otherwise arise naturally from the absence of the original electronic will and the original 1993 will.  In these circumstances I am deposed to accept her evidence by way of explanation in so far as it goes. I find that the form and content of the will document replicates the form and content of the electronic will executed by the deceased on the applicant’s iPad on 15 October 2018. I also find that the electronic will has been lost.

    Consideration

22. I would admit the will document to probate pursuant to s 12(2) of the Act. I am satisfied that the scanned copy titled ‘doc 35820620181019122607.pdf’ is the printed copy of the electronic will prepared by the applicant at the deceased’s direction and duly executed by her before attesting witnesses on 15 October 2018. I find that it sets out the deceased’s testamentary intentions and that in affixing her electronic signature to the electronic document she intended that document to constitute her will.

23. I am further satisfied that sufficient searches have been conducted to find the electronic will and that it revoked all pre-existing wills. I am also satisfied that the circumstances surrounding the absence of the electronic will have been adequately explained.

24. I also find that the presumption of revocation has been rebutted. In my view the absence of the electronic will has been sufficiently explained so as to rebut the presumption that its absence evidences the destruction by the deceased of the electronic will. In this case it is evident that the electronic will was not in the possession of the deceased after due execution had occurred. Rather, it was in the possession of the applicant. The deceased did have possession of a copy of the electronic will, which could not be found upon her death. However, the totality of the evidence, including the unlikelihood that she would have intended to die intestate, given that she had made wills in 1993 and 2018, persuades me that she either did not destroy the copy or if she did, it was in the knowledge that the original electronic will was in the safe custody of the applicant.

25. Finally, I am satisfied that all persons prejudiced by the application, with the exception of Mr Cooper, have consented to the application and are sui juris.  While the original 1993 will cannot be found I do not consider that provides any obstacle to admitting the will document to probate.  For the reasons set out above, the admission to probate of the will document revokes the 1993 will. 

26. For similar reasons I consider that the interests of Mr Cooper should not stand in the way of the admission to probate of the will document.  Extensive efforts have been made without success to contact Mr Cooper since the application was brought for the admission to probate of the electronic document.  As I am satisfied that the document should be admitted to probate, his interests arising from the terms of the 1993 will, are adversely affected.  However, he cannot be found despite the efforts set out in the supporting affidavit of the applicant’s solicitor Ms Ioannides.[42]  I am satisfied that should not be an impediment to granting the application sought.  Having been satisfied as to the right and entitlement of the applicant to have the propounded document admitted to probate as the deceased’s last will and testament, Mr Cooper will not suffer any actual prejudice as he has no entitlement to any part of the deceased’s estate pursuant to the electronic will, the 1993 will having been revoked. 

    [42]   FDN 14.

    Conclusion

27. The document which the deceased intended to be her will is the digital document on the applicant’s iPad. It is this document that was completed by the applicant at the deceased’s direction and which the deceased signed electronically intending it to be her last will and testament. It complied with the formal requirements of s 8 of the Act. That document cannot be found. However, there is a true copy of that document which the applicant seeks to propound. Pursuant to s 8 of the Administration and Probate Act 1919 (SA) I would direct the Registrar to admit this PDF document titled “doc 35820620181019122607.pdf” to probate.