WHEN AN UNSENT TEXT MESSAGE BECOMES A WILL: UNDERSTANDING THE LAW AND ITS IMPLICATIONS
Whilst there are certain requirements that must be met in order for a will to be considered valid in South Australia, there are exceptions in which a will can be admitted to probate (probate is the process of proving a will and obtaining recognition from the court that a will is valid).
These exceptions are known as informal wills, and with the rising use of technology, the courts in Australia have been required to make determinations on whether smartphone wills and video wills should be admitted to probate. One example which has recently caused controversy occurred in Queensland where an unsent text message was found to be a legally valid will.
THE LAW IN SOUTH AUSTRALIA
The requirements for a valid will in South Australia are set out in the Wills Act 1936 (SA) (“the Act”) which provides that a will is not valid unless it is:
- In writing. Writing is defined as any visible form in which words may be reproduced or represented and includes printing, painting, engraving, typewriting, lithography and photography; and
- Executed as follows:
- it must be signed by the testator or by some other person in the testator’s presence and by the testator’s direction;
- it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
- the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- the witnesses must attest and sign the will (but no form of attestation is necessary); and
- the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
Though the Act sets out formal requirements for a valid will, the Act also provides that a document can be admitted to probate as a will even though it has not met the above requirements, if the Supreme Court is satisfied that:
- a document expresses testamentary intentions of a deceased person; and
- the deceased person intended the document to constitute his or her will.
AN UNSENT TEXT MESSAGE BECOMES A WILL
A QLD Case Study: Re Nichol; Nichol v Nichol & Anor  QSC 220
Sadly, a gentleman called Mr Nichol (“the deceased”) took his life on 10 October 2016. He was found with his phone in near proximity. The phone contained an unsent text message to his brother which read as follows:
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie 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 [omitted]
[initials][date of birth]
Dave Nic was the deceased’s brother, Jack was the deceased’s nephew, Trish was the deceased’s first wife, and Julie was the deceased’s wife.
Although the text message did not meet the formal requirements for it to be a valid will, there is similar legislation in Queensland which enables the court to dispense with the formal requirements and give effect to a will as an informal will. It must however be established that the document purports to state the testamentary intentions of the deceased, and the court must be satisfied that the deceased intended the document to form his/her will.
The deceased’s brother and nephew therefore sought that the text message be treated as the deceased’s final will. The deceased’s wife and estranged son argued otherwise. If the will was found to be invalid, then the deceased’s estate would have been divided between the deceased’s wife and estranged son pursuant to the rules of intestacy.
The Supreme Court of Queensland, having considered all of the evidence and a number of factors, was ultimately satisfied that the text message, despite being unsent, reflected the deceased’s testamentary intentions and the deceased intended for it to be his last will. Consequently, it was found that the will was valid, and the deceased’s wife and estranged son were precluded from the will.
It is important to note however that this did not preclude the wife and son from the estate, and they could make a claim for adequate provision giving rise to further litigation. Similar provisions are available in South Australia through the Inheritance (Family Provision) Act 1972 (SA).
IT’S NOT SO SIMPLE – IMPLICATIONS AND THINGS TO CONSIDER
While it seems simple to create a will on your phone, or a will generally, often it can result in complex and lengthy litigation and a significant reduction of funds from the estate. Accordingly, the intended beneficiaries are required to go through a difficult court battle to ensure that the deceased’s intentions are fulfilled and may not benefit as much as the deceased may have hoped. In some cases, it also results in the estate being distributed to unintended beneficiaries.
These cases highlight and reinforce the importance of seeking proper legal advice from a lawyer that specialises in Wills and Estate Planning and preparing a properly executed will that accurately reflects your wishes.
To find out more, please contact our Will and Estates specialists.
Written by Fiona Bailey – April 2018.