A court in Queensland earlier this week ruled that an unsent text found in the drafts folder of a deceased man’s phone the day after his suicide was a valid Will. This was despite opposition from the deceased’s excluded widow and son who stood to benefit from his intestacy.

In the text itself the deceased left ‘all that I have’ to his brother David Nichol, informally referred to as ‘Dave Nic’, and his nephew. It also included instructions to put his ashes in the back garden, and details of how to access his bank account. It was signed off with the words ‘My will’ and a smiley face.

For a Will to be valid in Queensland it must be in writing, dated, and signed by the testator and two witnesses, so the requirements for formality are very similar our own. However under s18 of the Succession Act 1981 (an Australian Act) the court may dispense with the formality requirements and declare a Will written in a ‘non-traditional’ form valid if satisfied that the testator intended for the document to be their Will.

Justice Susan Brown held that the wording of the text message showed that the deceased intended it to be his Will.

The next question was whether he had capacity at the time the text was written. Where the Will has not been formally executed it is for the party propounding the Will to satisfy the court that the testator had capacity. The court found that the fact the testator had committed suicide does not raise a presumption against testamentary capacity, and those close to him agreed that nothing in his behaviour indicated he was “so afflicted by depression that it was affecting his ability to think or function.” Ultimately the court found that on the balance of probabilities the deceased had testamentary capacity at the time of writing the text.

There was no evidence of any other Will or contrary wishes. The court were satisfied that the text message was intended to be the deceased’s final draft of his Will, and that he intended this to be found.

Although this is an Australian case and has no impact on English & Welsh succession law, it is interesting to see a courts approach to deciding how a text message Will could be valid. Especially considering the changes proposed in the Law Commissions recent consultation paper. (Summarised here: https://www.willwriters.com/blog/law-commission-making-will-consultation/ ).

One of the proposals suggested is recognition of Wills made and signed in an electronic format. Further proposals suggest allowing the courts to uphold Wills made informally to allow emails, notes and even texts to be used in place of a written Will.

The new powers would allow Judges to decide “on the balance of probabilities” whether the informal document should be upheld as the deceased’s valid Will. So maybe the future will see a rise in the ‘textator’?

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