19/10/2017

A recent case during which an Australian court accepted a draft text message as a legitimate will, puts in the spotlight again the issue of whether the law around wills should be relaxed.

The unsent text message on the deceased man’s phone was found in his drafts folder addressed to his brother. It stated that he wanted to give all that he had to his brother and nephew and signed off with a smiley face emoji. He also provided bank account details and information on where he had hidden money in his house.

The man’s wife argued that the text message was not valid as a will because it was never sent. The Brisbane Supreme Court, however, ruled that the wording of the text which ended with the words “my will” showed that the man intended it to act as such.

Despite ruling that the informal nature of the text did not exclude it from representing the deceased’s testamentary intentions, Justice Susan Brown of the Brisbane Supreme Court did also say that the decision shouldn’t open the floodgates to people making ‘DIY wills’ and that such wills would only be deemed valid in exceptional circumstances.

The case coincides with a Law Commission consultation paper calling for views on the law surrounding wills in the UK.

The paper seeks to address the fact that 40 per cent of adults don’t have a will, looking at whether this worrying statistic could be reversed by a relaxation of the law around wills.

However the suggestion that this could result in wills by text message becoming commonplace is highly unlikely.

In fact, while it was acknowledged that the Law Society had permitted electronic wills to be valid, junior justice minister Philip Lee stressed that this would not mean that a text message could constitute a will.

He stated: ‘The Law Commission has not made proposals to allow wills and other testamentary dispositions to be created by text message or similar informal routes. The Law Commission is, however, currently considering the law of wills, including how the law can provide for the making of electronic wills, whilst ensuring testators are protected against risks of fraud and exploitation.’

Responses to the Law Commission consultation on wills can be made up to 10 November 2017.

If you have any questions about creating or updating a will, please contact Sarah Mellor on 01782 205000 or email sarah.mellor@beswicks.com