OMG : Is a text message the new way to make a Will?
26 October 2017 by Andrea Godfrey
In Australia this month a Court has accepted an unsent draft text message on a mobile phone as an official Will. The deceased wrote the text to his brother and advised that he gave all he had to his brother and his nephew. He then sadly took his own life and the message was found in the drafts folder of his phone which also gave instructions where his money was.
His wife argued the contrary stating it was not valid as a will because it was never sent. The Judge stated that “The reference to his house and superannuation and his specification that the applicant was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small.” The Brisbane Supreme Court ruled that the text was worded in such a way that it was an indication that it was intended to act as his will. He had ended the text with the words “my will” and a smiley face.
In 2006 the law was altered in Queensland and informal documents can be considered a valid Will for e.g. .in 2013 a DVD recording that was marked “my Will” was accepted as a valid Will. In New Zealand the law changed in 2007 and the Act empowers the Court to declare a document that is not a valid Will to be a valid Will, if it is satisfied that the document expresses the deceased’s testamentary intentions – e.g. the Court accepted a document called a “schedule of intentions” as a valid Will even though it had not been witnessed.
In England, for a Will to be valid it has to be in writing and signed by the testator and two witnesses all in each other’s presence, otherwise, the Will is invalid. The UK’s Law Commission is currently fielding a public consultation on the legal rules applying to wills. Part of the proposal is that the court have the ability to “dispense with the formalities for a will where it’s clear what the deceased wanted”. Other proposals are changing the test for capacity to make a will to take into account the modern understanding of conditions like dementia and lowering the age that a will can be made from 18 to 16 years.
Some professionals agree that modernisation is required to take into account new technology and medical advancement. However, others believe that the current rules protect against the forging of Wills and to ensure that someone is not under undue influence – because there are witnesses to substantiate the testator signed the Will on their own accord.
If Wills can be made by text, voicemail, and email then it raises issues of proving how that document is authentic and what evidence is required to show that it was the true wish of the testator.
The consultation ends next month so it will be interesting to see whether the proposals are taken any further.