#LstTxt&Tstmnt: an unsent text message can count as a will, in the right circumstances

The unsent text message read:

“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 ….

MRN190162Q

10/10/2016

My will”

Based on those few sentences, a Judge of the Supreme Court of Queensland recently decided in Re Nichol that the property of a deceased man should go to his brother and nephew, rather than his widow.

Of course, the man’s text was not a conventional will, and it certainly didn’t meet the formalities traditionally required by law.

The Court’s acceptance of this “document” shows that the law can keep up with technology. But it shouldn’t be cause for complacency, especially among generations who are already unlikely to write a will or, indeed, to write anything down on paper at all.

Will do it later

Most people are familiar with the notion of will: it sets out our wishes about who should inherit our property, or who will take on certain responsibilities after we die. For instance, who will bury our body or take care of our pets? In law, these are called your testamentary intentions.

Figures vary about how many Australians have a “valid” will, but it’s estimated that 45% do not. Older people are also more likely to make one than younger generations.

Given that young people are used to recording their thoughts and wishes in electronic form, they are potentially less likely to leave behind a formal written will, at least in a conventional format.

According to the traditional rules on inheritance or succession law, people without wills die “intestate”.

The problems with intestacy

The rules relating to the division of assets and duties following a death intestate are formulaic and usually dictated by how close blood relatives are to the deceased.

This can lead to conflict, particularly for those whose close relationships aren’t always recognised by the state, like same-sex couples.

Sometimes people die intestate because they didn’t make a will in the right legal form. So to avoid intestate contests, all Australian states and territories have introduced some form of “dispensing” legislation.

This allows the court to accept a document that states the testamentary intentions of a person to be a valid will – but only if the court is satisfied that the person really intended that “document” to be a will, among other factors.

Australian law has been relatively good at keeping up with changes in the way we document things. In Queensland, for instance, when a law refers to a document, it is taken to include:

any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced.

The Queensland Supreme Court has previously led the way, holding that a note written on an iPhone can be a “document” for the purposes of making a will.

In Re Nichol, it continued this trend by holding that an unsent text message can also satisfy the definition of “document”.

When an SMS is a will

A written but unsent text message could simply be a partial thought, or something we haven’t committed to sending. So how could an unsent text operate as a will?

To work this out, a few things need to be scrutinised: the language, its contents, and the context. In other words, whether the person writing it had the capacity and intention to make it their will.

In Re Nichol, the immediate implication was that because the text was not sent, the deceased didn’t want it to operate as a will.

However, the deceased had concealed his decision to commit suicide, but had kept the mobile phone with him containing the draft message so that it would be discovered when he was found. The Court considered that he deliberately didn’t send it because he didn’t want anyone to know what he was about to do.

In other words, there was a legitimate explanation for the text being unsent.

Digital is not always better than analogue

The result in Re Nichol does not mean there’s no need to make a formal will. The surviving family may have to go through a lot of stress if all they have to rely on are electronic communications stored on your phone, computer or in the cloud.

There is one more question about electronic communications that has not yet been fully considered – what about the possibility of fraud or alteration to the message?

The old-fashioned ritual of signing a will in front of witnesses was a useful bulwark against fake wills, or the will being changed without the testator’s knowledge. In the future, the courts must require high levels of proof that the will is genuine and “un-hacked”.

Elise Histed, an expert in succession law, contributed to this article.

If this article has raised concerns for you or anyone you know, call Lifeline 13 11 14, Suicide Call Back Service 1300 659 467 or Kids Helpline 1800 55 1800.

Brendan Gogarty does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.