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Scanned wills – OK or not?

The electronic age is upon us.  My own office is looking at a paperless environment.  Anyone who has actually seen my office will realise this is a pipe dream.  The practical reality is that the times they are a changing and scanned documents stored in the cloud is where it is largely at.  Wherever in fact that might be.

These practices raise practical issues with trusts and wills where trustees and practitioners alike grapple with where to join the line.

Some armed with their Electronic Transactions Act  have boldly drawn it, scanned the lot, shredded the lot and smuggly sat down in their immaculate environs.  And go them.  However, have they drawn the line too far?

The recent decision relating to the will of Clive Douglas Crawford would suggest that yes, some have.  This case related to an estate where it was believed that probate would not be required.  This belief was wrong.  However, by the time this was discovered Mr Crawford’s will had been scanned and shredded.  No harm no foul there was a scanned copy.

Unfortunately the Registrar who reviewed the subsequent probate was not impressed with the paperless approach and denied probate of the scanned copy of the will, issuing a minute that concluded:

“… The Registrar in considering an application for probate has to be provided with an original will, and if that is not forthcoming then the appropriate application is one of “lost (or destroyed) will”, in so doing meeting the criteria which is set out in Dobbie (5th ed) at Chapter 10.

For that reason I am not prepared to consider this application, and am of the opinion counsel should make a new application in accordance with Chapter 10 Dobbie.”

The solicitor who had submitted the application for probate challenged this decision and then filed an application for review.

The decision is not particularly long and raises some useful considerations regarding the interplay of the High Court Rules, the Wills Act 2007 and the Electronic Transactions Act.

  • Rule 1.3 of the High Court Rules defines the word “document”, when used in the rules, as including information electronically recorded or stored, and information derived from that information.
  • The relevant rules in Part 27 (regarding probate) do not use the word “document”. They refer to a “will”. That word is defined in r 27.2, by reference to the definition in s 8 of the Wills Act 2007. That definition uses the word “document”.
  • The context of the Wills Act makes it clear that the document referred to is the original document.
  • Rule 1.3 of the High Court Rules cannot be invoked to extend the Wills Act definition to an electronically stored copy of the original document. The definition in r 1.3 does not have the effect of deeming information about the contents of the will which is electronically recorded or stored to be a “will” for the purposes of Part 27.
  • Section 25 of the Electronic Transactions Act provides that a legal requirement to retain information that is in paper form is met by retaining an electronic form of the information, in certain circumstances.

However, in the context of a will the original must be retained. It is not sufficient to produce a copy.   Importantly, safe custody of a will does not entail the retention of information that is in electronic form.

Section 32 of the Electronic Transactions Act  provides that a legal requirement to compare a document with an original document may be met by comparing that document with an electronic form of the original document, if the electronic form reliably assures the maintenance of the integrity of the document.

However, in the case of probate of a will, what is required is the original document.  Reasons for this include allowing:

  • inspection of the signature
  • considering the condition of the will itself to establish whether, for example, pages may have been removed or added, or that there may have been something attached to the will.

 

The message – progress is good, and important but care is required – sometimes a step forward is a step back or a step into the abyss.

Where wills are destroyed in circumstances where a later will has been made, but that will is subsequently found to be invalid, the legal advisers can find themselves liable in damages.  See Jensen & Ors v Rameka.

Also see:LawNews Issue 14

References:

  • In the Estate of Clive Douglas Crawford [2014] NZHC 609
  • Electronic Transactions Act 2002
  • Wills Act 2007
  • High Court Rules
  • J Earles, WLB Douglas, C Kelly, and G Kelly Dobbie’s Probate and Administration Practice (5th ed, LexisNexis, Wellington, 2008
  • Jensen & Ors v Rameka [2014] NZHC 1720

 

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