Will in unsent Text upheld in Australia

A court in Queensland Australia recently ruled that an unsent text found in the drafts folder of a deceased man’s phone the day after his suicide was a valid Will. This was despite opposition from the deceased’s excluded widow and son who stood to benefit under the Australian intestacy rules.

In the text itself the deceased left ‘all that I have’ to his brother David, informally referred to as ‘Dave Nic’, and his nephew. It also included instructions to put his ashes in the back garden and details of how to access his bank account. It was signed off with the words ‘My will’ and a smiley face.

For a Will to be valid in Queensland it must be in writing, dated and signed by the testator and two witnesses. The requirements for formality are very similar to those applying in this country. However under Australian laws the court may dispense with the formality requirements. They can declare a Will written in a ‘non-traditional’ form valid if satisfied that the testator (the person making the Will) intended for the document to be their Will.

Justice Susan Brown held that the wording of the text message showed that the deceased intended it to be his Will.

Even though he committed suicide the Court decided that there was no evidence that the testator lacked mental capacity when he made the Will. The court accepted there was no evidence of any other Will or contrary wishes. The court was satisfied that the text message was intended to be the deceased’s final draft of his Will and that he intended this to be found.

This is topical in the UK since the Law Commission is presently consulting on the recognition of Wills made and signed in an electronic format. Further proposals suggest allowing the courts to uphold Wills made informally to allow emails, notes and even texts to be used in place of a written Will.

Seems like dangerous territory to me!

(Based on an article published by the Society of Will Writers)

Lasting Powers of Attorney (LPAs) – are they a valuable investment or open to abuse?

Recent comments in the press attributed to Denzil Lush the former Senior Judge at the Court of Protection who retired last year suggest that as many as one in eight of people making LPAs have their assets stolen by the family members they appoint as their Attorneys.

He recommends that instead of making LPAs people should do nothing. In these circumstances should they lose mental capacity a professional Deputy will have to be appointed by the Court to look after their affairs. This seems to us counter intuitive.

With professional advice for the person making a LPA and for their appointed family Attorneys, and including the Court fees the total cost of making and registering a LPA is less than £270. The cost of appointing a Deputy on the other hand is at least £2,000 with an ongoing cost of at least £500 per annum.

This is a nonsense!

Almost all of our Clients trust their children to make the right decisions for them if, and when, they are unable to take decisions themselves. Where this is not the case or there are no children we can appoint a professional Attorney, a Trust Corporation for example, who can deal with the Donor’s (the person making the LPA) financial affairs as and when necessary for a modest fee.

In summary, LPAs are an essential tool to enable your financial and health & welfare matters to be dealt with if, and when, you are unable to deal with these matters yourself. Making LPAs and the appointment of family Attorneys is by far and away the best solution.  Contact us if you have questions about LPAs.

Beware not all those offering to write your Will are what they seem!

I don’t want to be morbid but when you make a Will, providing it’s valid, it will speak from your death. Too late for you to do anything about it.

If you or the person writing your Will gets it wrong and you die it’s too late. If the Will fails the Rules of Intestacy (as though you had died without making a Will) will apply or your loved ones will be left with an expensive fix. Potentially thousands of pounds from your estate to put things right.

If you employ someone to write your Will, face to face, by filling in a form, on the phone or online make sure they are qualified and have professional indemnity insurance (a minimum of two million pounds). Ask to see evidence of their qualifications and a Certificate of Insurance. Then if things go wrong your family will have somewhere to seek recompense.

Generally those qualified to write Wills are Solicitors (registered with the Solicitors Regulation Authority), Legal Executives members of CILEx, Members of the Society of Trusts and Estate Practitioners (STEP) and professional Will Writers members of the Society of Will Writers (SWW) or the Institute of Professional Willwriters (IPW).

You have been warned. Contact us for advice.

Is it possible to change someone’s Will after they have died?

Why would anyone want to do this, surely a Last Will and Testament is just that?

There are many reasons, here are a few –

  • family circumstances may have changed since the Will was written
  • the Will is invalid or fails when submitted for probate (when the deceased person would be deemed to have died intestate (i. e. without a Will))
  • the Will is incorrectly or incompletely administered
  • activities called for in the Will have not been enacted
  • the beneficiaries simply want to pass their due inheritance directly someone else.

The answer is the Will (or intestacy if there was no valid Will) can be varied by the agreement of all the parties within the two years following the death.   The parties would need to execute a Deed (or Instrument) of Variation.

But remember time is of the essence.   Contact us for more information.

Prepaid Funeral Plans – How do you select a plan provider?

Here are some things to consider before deciding on your Funeral Plan:

Low prices versus:

– A cast-iron guarantee of security

– A properly regulated supplier; and


Tips –

  1. Check to see if the funeral director is appointed from day one and GUARANTEES to carry out the funeral and there will NEVER be more to pay for his services however far into the future they are required and how the plan combats inflation.
  2.  Is the firm regulated by The Funeral Planning Authority (FPA)? Apart from maintaining standards, FPA membership means that if a member firm gets into trouble, the other members will step in to deal with the funerals.
  3. If the plan is Trust based DEMAND to see the latest trust accounts. Ensure the assets exceed the liabilities (this is compulsory for FPA members).

Take advice, check out all the differences and decide which is the BEST overall plan for you.

There are some very good funeral plan providers – we think the plan we offer is provided by one of them – the plans are called “GUARANTEED” for a reason.

Contact us for more information.

How can we help?

Call us today on 01908 866541
or send us an email