• March 29, 2024
 Would Australian unsent text message verdict stand in the UK?

Would Australian unsent text message verdict stand in the UK?

In a recent case, the Australia Supreme Court accepted a draft text message on a dead man’s mobile phone as a legitimate will. The unsent text, written before he committed suicide, left his home and his pension to his brother and nephew.

Despite a claim from his estranged wife, Justice Susan Brown of the Brisbane Supreme Court found that: “The informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions”. The law in Queensland was changed in 2006 to allow less formal types of documents to be considered a will.

The case has led to discussions about what would happen should a similar incident happen here. However, while in certain circumstances, the formal requirements of a will can be overlooked in Queensland, in England and Wales the situation is very different.

According to the law, a will must be made in writing and signed by the testator in front of two witnesses. The will must then be signed by two witnesses. In addition, the person making the will must intend the document to be used as such. So, in England and Wales, the draft text message would not have been accepted by the courts.

Experts have raised the issue of deathbed gifts (or donation mortis causa), which can be made, outside of a will if three conditions are met:

  1. the donor of the gift contemplates his or her impending death;
  2. the gift is to take place when the contemplated death occurs and until then the donor can revoke the gift;
  3. the donor gives “dominion” over the asset i.e. hands over the assets or items that indicate ownership of it.

However in this case, the draft text was not sent to the recipients, never mind the assets.

What’s more, over the last few years there has been debate about the validity of deathbed gifts as they “lack the certainty of a written will and the safeguards it affords such as the opportunity to take independent advice and the strict requirements of execution in the presence of witnesses as required by the Wills Act 1837” {Lord Justice Jackson, King v Chiltern Dog Rescue [2015] EWCA Civ 581}.

In England and Wales, such a case would also likely lead to arguments about mental ability, although the Queensland Court did consider this issue and found that the man did have the capacity to make his will.

The Law Commission is currently consulting on potential will reforms and is looking at whether changes should be made to take account of developments in technology. As part of this process they are considering both electronic wills and dispensing provisions. However, concerns about protecting people from unscrupulous beneficiaries and abuse are expected to influence any reforms.

Deborah Stuttard