The case of the unsent text message Will

Unsent text message

In a recent Australian case, an unsent draft text message was held to be a valid Will. The case concerned a 55-year-old man who had composed the text message addressed to his brother, shortly before committing suicide. The message stated that ‘all the man had’ should be given to his brother and nephew. His estranged wife challenged its validity and the case was considered by Brisbane Supreme Court.

The requirements in Queensland for a valid Will mirrored those of English law until 2006. Wills had to be made in writing, and signed by two witnesses. However, a change in 2006 allowed less formal documents to be considered as a Will.

According to ABC news, the text message in question gave some detail on how to access the man’s and where he had hidden money in his house – behind the television. Justice Susan Brown noted that the wording of the message, which ended with the words “my Will”, showed that the man intended it to act as his Will.

She stated:

“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.”

Further, the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was:

“created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.

Using external evidence for interpretation

It is unlikely that the above case would be decided the same way in the English courts. However, if a Will is held to be valid, the Courts may consider other evidence to assist them with interpretation. In a recent case (Vucicevic and another v Aleksic and others [2017] EWHC 2335 (Ch)), the High Court were challenged with interpreting a home-made ‘holograph’ (handwritten) Will which was composed by a Testator with a poor command of written English. The Judge was presented with various sources of expert evidence which included:

  • Evidence from a graphologist clarifying what the Testator had intended when crossing out an amount relating to a cash gift, and also whether the gift was meant to be in euros or pounds.
  • Evidence from a translator explaining the meaning of a particular word in the Testator’s native language.
  • Evidence taken from the wording of the Will as a whole, and the surrounding circumstances.

The important thing to note here is that the document in question met the requirements of a valid Will and the Court’s use of external evidence was limited to understanding what the Testator intended.

Wills in the UK

Video wills

Video evidence of a person’s intentions could be considered by the Courts in the future.

Although it is unlikely that the case would be decided the same way in the UK, the Law Commission is currently running a consultation which proposes that other types of evidence might be considered when trying to determine a person’s intention. This might include text messages, emails and videos. A full breakdown of the proposals are considered in our blog, Will we really be making Wills by text message?

In the meantime, the Courts still require that Wills meet the requirements of the rather archaic Wills Act 1837, including:

  • The Will must be in writing and signed by the testator (the person making the Will), or signed by someone in their presence under their direction.
  • It must appear the testator intended by their signature to give effect to the Will.
  • The testator’s signature must be made or acknowledged in the presence of a minimum of two witnesses who are present at the same time.
  • Each witness must either attest and sign the Will, or must acknowledge the signature in the presence of the testator – although not necessarily in the presence of any other witness.

If the Will does not comply with the above, it will be invalid. The Courts do have the power to rectify certain defects where it is very clear that an error has occurred (for example in Marley v Rawlings and another [2014] UKSC 2, the Supreme Court held that a Mirror will signed by wrong spouse could be rectified) – however, such cases can attract thousands in legal fees and there is no guarantee of the outcome. There has been a huge increase in the number of challenges to Wills from disgruntled family members, and DIY Wills are a particular risk.

Many consider their Wills to be a document that explains how to divide up their property on death – but a poorly made Will can lead to confusion, division in the family and unnecessary expense at an already difficult time for those close to you. Book your free home or office appointment and discuss making your Will with April King Legal today, without obligation – call us on 0800 788 0500 or click here to order your free information pack.

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