By Mary-Ann de Mestre -
Snapshot
- With more than half of Australian smartphone users using iPhones, executors often face device lockouts; without the passcode or a ‘legacy contact’, critical data and evidence may be permanently lost.
- Over the last ten years, courts across Australia have admitted or rejected smartphone notes and texts as wills, with the decisive issue being not the medium but whether the deceased intended the document to operate as their final will.
- Advising clients to set up Apple Legacy Contacts, securely provide device passcodes and include digital asset clauses in their wills is now important estate planning hygiene which will prevent disputes and protect value.
Digital devices are now the vaults of our clients’ lives: two-factor codes, banking apps, authentication tokens, photos, notes, voice memos and even draft wills. Australia is a highly smartphone-penetrated market, with around four in five of us owning a smartphone. For practitioners, failing to plan for access can derail an otherwise tidy estate plan and lead to administration difficulties. For litigators, it’s increasingly the seed of an ‘informal will’ dispute.
Why executors need iPhone access (and why mere possession of the phone is not enough)
Apple iPhones are designed to be inaccessible without the passcode or biometric unlock. After death, the biometric usually fails (Face ID/Touch ID time out), and without the passcode the executor is often locked out. Apple won’t unlock devices on request; absent the testator having set up a Legacy Contact, access requires a tightly circumscribed process with Apple and/or a court order. Even then, device-level access is distinct from account-level data. Practically, if there’s no passcode and no Legacy Contact, priceless photos, business records, password manager vaults and authenticator apps can be irretrievable.
