Will in unsent Text upheld in Australia

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)

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