Contesting a will made by text message

The text message will: A modern will for a modern world.

The Brisbane Supreme Court in Queensland Australia has ruled that an unsent text message is a valid Will.

The circumstances of the case are that a draft text message was found on the mobile telephone of a 55 year old man who took his own life last year. The message, which had not been sent, was addressed to the man’s brother and stated that he wanted his brother and nephew to receive his estate. The man also gave instructions for the burial of his ashes and directions on how to access his bank accounts.

The man was survived by his wife. She applied to manage his assets on the grounds that the text was not a valid Will. The requirements for preparing a valid Will in Queensland generally demand that it be in writing and signed by two witnesses. However, the rules were relaxed in 2006 to enable less formal documents to be considered as Wills. The Court ruled that the wording of the text message sufficiently demonstrated the man’s intention to make a Will and therefore constituted a valid Will.

This case would have had a different outcome if it was heard in a Court in England and Wales. The requirements for Wills in our jurisdiction are currently more stricter and anyone making a Will must comply with certain formalities for the Will to be valid.

Section 9 of the Wills Act 1837 sets out the following requirements for a Will to be valid:

• It must be in writing;

• It must be signed by the testator, or some other person in his presence and at his direction;

• The testator, by his signature, must have intended to make a Will;

• The signature is made or acknowledged by the testator in the presence of two or more witnesses;

• The witnesses must then attest and sign or acknowledge their signature in the presence of the testator.

Clearly a text message would not meet the required standards to be a valid Will in England and Wales. However, there are exceptions to the above requirements. Privileged Wills can be made in certain circumstances, such as by members of the military on active service or by mariners. Wills drawn up in these circumstances are not subject to the same formalities as normal Wills, but are rare.

There is also a growing appreciation that the law governing Wills needs to move with the times and it is likely that sometime befor the 200th aniversary of the 1837 Wills Act we will see new provisions introduced that will allow electonic Wills to be valid.

 If you need assistance with contesting a will our specialist contentious probate solicitors will be happy to provide a free initial case assessment. Call us today on 0808 139 1596.