Can A Text Message Be A Valid Will in NSW?
Traditionally a valid will is a carefully prepared document that expresses your testamentary intentions that has to be signed in the presence of 2 witnesses. Today’s world however has seen major technological advances. In fact, most people hardly go anywhere without their mobile phones. If an emergency situation occurs and you have no will in place, can you text a will?
The answer is yes, you might be able to! A recent decision by the Queensland Supreme Court found that an unsent text message was a valid will, even though it was made without any witnesses and remained unsent when the person died.
The deceased, a man in his 50s living in Brisbane, committed suicide in his shed at his home. Before he committed suicide however, he typed up a short text message on his phone addressed to his brother leaving him and his nephew his house and superannuation. The text message also stated how he wanted his ashes to be dealt with and excluded his de-facto partner from receiving any of his assets on the basis that she had cheated on him.
The Deceased’s de facto filed for Letters of Administration on the basis that there was no will. She hoped under the law of intestacy to receive the entire estate. The deceased’s brother and nephew having found the text message in the deceased phone, brought proceedings on the basis that the unsent text message was a will and that they should receive the estate.
The Queensland Court found that a text message is a valid electronic document under the law. The fact that the deceased had labelled the text message his will and had put his initials and date of birth at the end of the text message showed that he intended it to be a will. Further, the deceased had specially identified his house and superannuation as assets and his ashes to be buried at a specific place. Lastly, the deceased had listed specifically that he did not want anything to go to his defacto on the basis that she had cheated on him. The Defacto partner argued that even if a text message could be a will, it was unsent and accordingly should have no effect. The Queensland Supreme Court found that this level of detail was enough to show that the deceased intended the message to be his will even though it remained unsent.
The rise in technology has then seen an acceptance of a variety to electronic mediums as legal documents. So, if an emergency situation occurs, a quick text may mean that your assets are divided the way you want them to be. It has yet to be validated in NSW, but with technology moving so fast, it can only be a matter of time!
Heckenberg lawyers are expert Wills and Estates lawyers, the principal of the law practice, Graeme Heckenberg has over 25 years’ experience in this area of law. If you would like to contest a will on the basis of a later electronic document or for more information, contact Heckenberg Lawyers at (02) 9221 2779 or see our “Booking Page” to make an appointment!