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Where there’s a Will, there’s a Way

Where there’s a Will, there’s a Way

A text message as a Will? Find out about the recent decision by Queensland's Supreme Court

16th October 2017

The Supreme Court of Queensland has recently found in favour of a Will that was created in a draft text message. In October 2016, a man in his fifties took his own life after leaving an unsent text message on his phone.

The text message left the deceased’s house and superannuation with two other people whilst the message went to direct them as to where to place his ashes. It outlined where to find spare cash and what his bank card pin was. It included a date and finished with the words ‘My Will”. Interestingly, the message included a smiley emoji and a code, MRN190162Q, which was interpreted as the deceased’s initials and date of birth. Surely though, having almost 300 characters in a message does not constitute a legally binding will?

Outcome

The Supreme Court of Queensland found the will to be legally binding. It considered the text message an electronic document that clearly purported what was to be done with the estate. The last requirement was that the court must be satisfied the deceased had the intention for the message to be considered his Will. Both sides argued different reasoning as to the intention, but the Court found that capacity and intention existed and reasoned with the following points:

  • The message was created close to the time of death
  • The phone was on the deceased where he died
  • The message expressly stated what to do with assets
  • The level of detail in the message was sufficient, including the indication that it was a will at the end
  • There were no contrary wishes or intentions in relation to the estate

If you need a Will, LawPath has a convenient and affordable Online Will Kit that can ensure that your estate is distributed to those who are important to you.

What is required in a Will?

Generally, for a will to be considered valid in New South Wales:

  • You must be over 18 unless married or in exceptional circumstances
  • The will must be in writing (this may include typed or handwritten)
  • It must be signed and witnesses by two or more witnesses who are not beneficiaries to the will
  • You must have the ‘capacity’ to understand, the legal effect of the will, the extend of your assets, who will benefit and you must not have an illness preventing rational decision making

The requirements of a Will depend on the state or territory you are in. Obviously, the issues found in the example above can be avoided with a correctly drafted Will.

If you need guidance in creating a will read our guide How do I make my Will?. If you are considering disputing a will, consider our Step by Step Guide to Challenge a Will.

Do you need help creating a Will? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents, obtaining a fixed-fee quote from one our network of 750+ expert lawyers or any other legal needs.

Author
Adam Lewis

Adam is a Consultant at Lawpath working with the Marketplace Team. With an interest in consumer and commercial law, he is currently completing a Bachelor of Commerce and Bachelor of Laws at Macquarie University.