In October this year the Queensland Supreme Court heard a case regarding the validity of an Informal Will. Interestingly the case examines whether an unsent text message can be accepted as an Informal Will. The case brings two questions to light. Firstly it asks us to consider whether formal Wills are still necessary in our technological age. Secondly what the court will consider or accept as an informal Will.
The background to the case:
The case before the QLD courts involved a 55 year old man who drafted a text message. The man drafted a message to his Brother and Nephew before he took his own life but never sent it. A friend then found his phone close to the body with the unsent message in the draft folder. The message read:
“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. A bit of cash behind TV and a bit in the bank Cash card pin … My will.”
What makes a valid Informal Will?
Ordinarily there are basic requirements that a Will must satisfy to be deemed as valid. For example one requirement is that a Will needs to be signed in front of two witnesses. The witnesses also need to be over the age of 18 who are not beneficiaries to the Will. However in this case Justice Susan Brown closely examined multiple factors including:
- the wording of the text, including the use of the term “my Will.”
- the information contained in the text message
- level of detail in the text
Justice Susan Brown found that the use of the term “my Will,” the wording in particular detailing his assets and providing his bank pin meant that the man not only had the capacity but intended that this text message would be his Will. The court, on this basis found that the draft message was capable of being a valid informal Will.
So what does this mean?
Before everyone starts pulling out their phone and writing their Will it should be noted that a properly drafted Will is always the best way to ensure your testamentary wishes are met. Further a Will is not only a document created for your peace of mind but also helps reduce the risk of disputes between your family when you a pass away. We always explain a Will is one way that you can help reduce the burden on the people you care about when you pass away. In the case above if a proper Will was drafted the man’s brother and nephew may have been able to avoid court.
It is impossible to ever guarantee a Will, will not be challenged (see articles on Family provisions legislation on this website) however a properly drafted Will reduces the risk. If you have any queries about Will drafting please contact our team on (02) 9687 8885 or alternatively leave us an email inquiry on our website.