• March 28, 2024
 Unsent text message accepted as will by Australian court

Unsent text message accepted as will by Australian court

An Australia court has accepted a draft text message on a dead man’s mobile phone as a legitimate will. The unsent text, which was found in his drafts folder after he took his own life last year, was addressed to his brother and referenced his home and his pension.

The deceased stated that he gave “all that I have” to his brother and nephew and signed off with a smiley face emoji. He also provided his bank account details and information on where he had hidden money in his house.

The message illustrated that the man had become irritated with his wife, stating that: “You and (nephew) keep all that I have house and superannuation, put my ashes in the back garden… (wife) will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten.”

The man’s wife argued that the text message was not valid as a will because it was never sent. Under current law in Queensland, a will must be written and signed by two witnesses. The Brisbane Supreme Court, however, ruled that the wording of the text which ended with the words “my will” showed that the man intended it to act as such.

According to Justice Susan Brown of the Brisbane Supreme Court: “The informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions.”

Commenting on the decision, Samantha Lauriston, a solicitor in Irwin Mitchell Private Wealth’s Will, Trust and Estate Disputes team said: “This case is not the first case to consider if testamentary wishes drafted on a phone can stand as a valid will. In the case of Re:Yu, the Supreme Court of Queensland Australia ruled that a will typed on an iPhone but not written out, signed or witnessed would stand.” 

However, she went on to add that: “Despite these two recent decisions, this shouldn’t open the floodgates to people making ‘DIY wills’ because the court made it clear that there has to be exceptional circumstances for such a will to be held valid. 

“It is noteworthy that the law in Queensland was changed in 2006 to allow less formal types of documents to be considered a will. The current law in the UK does not allow for this; the Law Commission is currently consulting on potential will reforms and is expected to report back in 2018.  This consultation will consider whether the law could be reformed to encourage and facilitate will-making in the 21st century and whether the law should be updated to take account of developments in technology. 

“There are strong arguments to suggest that wills should continue to be drafted in traditional written documents, but it also has to be considered that there would be many advantages to an individual being able to express their testamentary wishes in electronic, audio or audio-visual recording.  In the age of electronic communications, people’s lives are increasingly conducted online and ultimately, the traditional method of creating a will is set to become outdated. That said, any changes will have to be carefully thought through to make sure that the vulnerable are protected and that the system is not open to abuse.”

Despite the ruling, the man’s wife could make a further application for the estate under family law.

Deborah Stuttard