An unusual case heard recently in Australia’s Queensland Supreme Court saw a successful claim that an unsent draft text message found on a mobile phone of a man who took his own life should stand as his will.
The phone showed that the deceased had composed a text message addressed (but not sent) to his brother in which he gave “all that I have” to that brother and one nephew. The message also contained details of how the brother should access bank accounts, where cash could be found in his property, and directions as to burial of ashes. The message was composed a few days after the deceased separated from his wife. She claimed that the text message could not be considered a will - of course she would benefit if it could not.
The law regarding will validity in Queensland is largely similar to that of England and Wales, in that a will must usually be in writing and signed by the person making it, that signature to be witnessed by two witnesses who also provide their signature. However, in 2006, the law in Queensland was changed to allow the court, in some exceptional cases, to dispense with the usual formalities for a will and allow less formal types of documents to be considered as valid wills.
It would appear, in this recent case (Re Nichol: Nichol v Nichol  QSC 220), the court was satisfied that the wording of the text message showed that the deceased intended it to act as his will. He referred to specific assets such as his property, indicating he was aware of the nature and extent of his estate, and he was contemplating his wishes on or about the time that he was contemplating death.
As the law in England and Wales currently stands, there would be no chance that such a text message would be held to stand as a valid will. It simply would not comply with the necessary formalities and so the brother’s claim would not get off the ground.
However, the UK’s Law Commission has recently published a public consultation on the legal rules applying to wills and one of the proposals is to give courts the capacity to dispense with the formalities for a will where it is clear what the deceased wanted. The Law Commission is also considering electronic wills in an attempt to ensure more people make a will. The consultation is at a very early stage and it is currently unclear how formalities could be dispensed with without watering down the protection which the law currently provides for validly executed wills. These are certainly interesting times and we shall endeavour to report again if and when the consultation moves forward.
The public consultation can be found here
If you would like to discuss the validity of a will or any potential contentious probate matter, please do not hesitate to contact Hannah Johnson of our Bedford Office on 01234 270600 or at firstname.lastname@example.org.