The deceased died in 1998 at 39 years of age. He had previously been married and had a child as a result of that marriage. However, his wife also had a further child who lived with her, the deceased and their child, and was regarded by the deceased as his own. In 1989, the deceased's wife died, and in 1993 the deceased commenced a de facto relationship with the applicant in the case, a relationship that continued until the deceased's death.

The issue before the court was whether or not the deceased's will found on his computer hard drive was a valid one for the purposes of the Wills Act 1997. The document was contained in a file called "will" and the deceased's name and the date appeared at the end of the document. The terms of the will provided that all of the deceased's estate be transferred to the applicant upon his death, with two-thirds of it to be held on trust for the two children, and one-third to be retained by the applicant.

In examining the will and the intentions of the deceased, the court was given evidence of conversations between the deceased and the applicant, and between the deceased and other family members and friends. On a number of occasions while the deceased and the applicant were living together, the deceased told her that he had left a will on his computer. The deceased's sister also gave evidence of conversations conducted with the deceased six months before his death in which the deceased made reference to his will and the provisions he made pursuant to it. The terms of the will discussed by the deceased and his sister were exactly the same as those in the computer will. In addition, a close long-time friend of the deceased stated that in the last five years of the deceased's life, they discussed on at least five occasions the deceased's wishes and desires in terms of providing for his children and de facto wife in the event of his death. Again, these wishes were mirrored in the computer document.

Pursuant to section 9 of the Wills Act 1997, the court may admit to probate as the will of a person a document that has not been executed in accordance with the Act provided that it is satisfied on three points, namely

• that there is a document;
  
• that the document records intentions that are testamentary in nature; and
  
• that the document was intended by the deceased to be his will.
  
  

In arriving at the decision to grant probate of the computer document as the will of the deceased, the court considered the evidence concerning the making of the document and evidence concerning the testamentary intentions of the person as outlined by the applicant, the deceased's sister and his friend. In this case, it was clear to the court that the document on the computer was intended to be the deceased's last will and testament.

The court also referred to section 38 of the Interpretation of Legislation Act 1984 which defines the word "document" as including "any disc, tape, sound track or other device in which sounds or other data ... are embodied so as to be capable ... of being reproduced therefrom". The section clearly envisages the inclusion of computer files as documents.

This case highlights the court's readiness to uphold the spirit of the law in the area of wills giving effect to a person's intentions rather than applying rigid testamentary requirements.