Mobbs and Marr

Making a will with an unsent text message.

Making a will with an unsent text message.

Do you have a Will? Is it validly executed? Is it on your phone, is it a video recording or is it written on a scrap of paper? If so, you may wish to consider preparing a new Will to save your family some stress and money.

Proving informal wills in Queensland

The legislation in Queensland provides that a will must be in writing, signed by the testator and witnessed by at least two witnesses who are not beneficiaries of the estate. However, there is provision under the legislation which allows a court to dispense with the formal requirements for a validly executed will (often referred to an informal wills).

Requirements of the legislation

The court will only dispense with the formal requirements if the document purports to state the testamentary intentions of a deceased person. In making a decision, the court may have regard to any evidence relating to the way in which the document was executed and any evidence of the person’s testamentary intentions, including evidence of statements made by the person. However, the court is not limited to the above considerations although it does not appear that it is possible to revive a revoked will where a testator has treated the document as if it were still effective.

A document for the purpose of an informal will includes any paper or other material on which there is writing, any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them and any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

The court has held that notes left on an iPhone were found to constitute a valid will (Re Yu). A video recording found on a DVD has also been held to constitute a will (Mellino v Wnuk).
The long accepted test for testamentary intention was set out by Powell JA in Hatsatouris & Ors. v Hatsatouris. The test for testamentary intention is whether there was a document, whether that document purported to embody the testamentary intentions of the deceased and whether the court is satisfied that at the time of its creation, the deceased intended that document to operate as his or her will.

The onus of proving testamentary capacity where there is an informal will lies on the party seeking to convince the court that the deceased intended the document to constitute his or her will (Konui v Tasi & Anor). The court must evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principles and reasonable satisfaction should not be attached by “inexact proofs, indefinite testimony, or indirect inferences” in relation to capacity.

Re Nichol; Nichol v Nichol & Anor

The case of Re Nichol; Nichol v Nichol & Anor concerned an application that the Court dispense with the execution requirements for a will in circumstances where the deceased took his own life and created a text message on his mobile phone shortly before he died addressed to his brother outlining his wishes in relation to his estate but the text message was not sent.

The following facts were considered in finding that the unsent text message constituted an informal will:

1. The fact that the text message was created on or about the time that the deceased was contemplating death such that he even indicated where he wanted his ashes to be placed;
1. That the deceased’s mobile phone was with him in the shed where he died;
2. That the deceased addressed how he wished to dispose of his assets and expressly provided that he did not wish to leave the applicant anything;
3. The level of detail in the message including the direction as to where there was cash to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending the document with the words “my will”; and,
4. He had not expressed any contrary wishes or intentions in relation to his estate and its disposition from that contained in the text message.

Important considerations

When making your will, you need to be aware of the impact that an informal document such as notes or a list of personal items may have on his or her will. The making of a new will minimises the likelihood of the need for an application to be made to the court. Whilst there are obvious costs involved in the review of current documents and preparation of a new will reflecting any changes, the costs are likely to pale in comparison to the costs to be incurred in an application to the court to attempt to remedy.
If you would like assistance with your estate planning strategy, please contact us.

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