Posted on 16.10.17 by Michael Smoult
In Queensland, Australia, a significant decision was made to accept a draft text message on a deceased man’s phone as a valid will.
The message was found on the man’s phone after he committed suicide last year, it contained specific details relating to his small estate in which he asked for ‘all that I have’ to be given to his brother and nephew. The message also included details on how to access his bank account, the locations of where he had hidden money and where he would like his ashes to be placed. The message concluded with the words ‘my will’.
The Brisbane Supreme court ruled that the wording used in the message showed sufficient intent to use the message as his last will and testament.
In 2006, the law in Queensland was changed to allow less formal types of documents to be considered as a will in cases where the deceased doesn’t have one.
The UK law commission has recently proposed that similar changes be made to UK law to adapt the current legislation to be more suitable for today’s ‘modern world’. Changes relevant to this particular case include factoring in the emergence and increased reliance upon digital technology and enabling the court to dispense with the formalities for a will where it’s clear what the deceased wanted. This ruling (albeit in Australia) in many ways could serve as a glimpse into the future of UK will law if reforms were to take place.
Although it’s not yet clear what exact details and procedures would be involved in any such reforms, this case in particular raises a number of red flags that ought to be taken into account.
In the drafted message, the man had all the parts of a will you would expect and he had clearly considered it to be his will at the time, only it did not comply with the usual formalities of making a will, this creates certain issues and ambiguities.
For a will to be legally binding, the person amongst other factors needs to be of sound mind, have knowledge and approval of the will and not be influenced to make the will. The man in this case wrote the draft message with the intention to commit suicide shortly afterwards, it would be reasonable to assume that he wasn’t emotionally or mentally stable at this time, which for me would certainly cast doubt over the decisions made in the unsent text message. Also how do we know this was what he wrote and not someone else? With the lack of any witnesses it is certainly questionable whether this would leave wills open to fraudulent acts.
The fact the message went unsent is also significant, we’ve all at one time typed out a text message only to change our minds about either its content or the intended receiver, leaving it to dwell in the drafts folder. This was the argument used by the man’s wife when applying to manage his estate; it’s not unreasonable to assume he left her out of the text message as a result of a recent argument, only to change his mind.
These points highlight one of the main issues with informal wills, how would a court be able to establish what state of mind the deceased was in when they wrote the communication in question? Were they inebriated? Tired? Stressed? Perhaps the person was vulnerable and faced intimidation or manipulation?
With this drafted and unsent message, such an informal form of communication being accepted as a will can set a potentially dangerous precedent moving forwards. There will always need to be some degree of formality to making a will, not only to give reassurance to family members and an element of protection vulnerable persons; but also to minimise the myriad of arguments that could stem from such casual forms of communication having real influence over matters with potentially high financial and/or sentimental implications.
If you’re considering making a will, at Gorvins we have a highly experienced team of experts in all Wills Trusts and Probate Matters. Call our team today on 0161 930 5151 or e-mail firstname.lastname@example.org