Can an unsent text message with a smiley emoji be a valid Will?


Posted By on 14/11/17 at 9:11 AM

By Clea Cole (Lawyer), Bridget Hobbs (Lawyer) and Jack Stuk (Principal Solicitor)

After a costly and time-consuming court battle between a deceased’s surviving family members, the Supreme Court of Queensland has dispensed with the formal signing requirements for a Will and found that an unsent text message on a mobile phone can operate as a valid Will.

Background

The deceased, who tragically took his own life, was found by his widow with his phone close to his body with the following unsent text message:

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 3636 MRN190162Q 10/10/2016 My will 🙂 ”

The reference to “Dave Nic you and Jack ” was a reference to the man’s brother (Dave Nic ) and nephew(Jack).  The abbreviation “MRN190162Q” matched the deceased’s initials and date of birth, 19 January 1962 and on the right hand side of “My will”, the deceased ended it with a smiley face.

The deceased’s widow argued the deceased had not sent the text message as he had not made his mind up. If the court found it was not a valid Will, she as the legal widow would have a strong claim on the deceased assets.

However, the deceased’s brother and nephew argued that it was clear that the text message, titled “My Will”, was to have effect upon death and that there was no indication that the deceased lacked testamentary capacity(i.e. despite taking his life, he knew who he wanted to leave  his assets to).

After considering all the facts, Justice Brown was satisfied that the deceased did intend the text message to operate as his final Will – leaving his wife (and son) with nothing and the brother and nephew with the house and superannuation, but only after the costs of the litigation are paid.

 

Unsent SMS constitutes valid Will

 

Is this the end?

It is worth noting that the deceased’s wife and son can still apply under family law legislation to receive some of his estate.  As the costs of litigation and family law proceedings are deducted from the estate, however, there may be little left to go around.  In fact after paying all of the relevant legal fees, the deceased relatives may in fact be out of pocket.

There is also no guarantee that the brother and nephew will receive the superannuation death benefits as these do not automatically form part of a deceased’s estate.  The trustees of a super fund normally have a discretion as to who to pay superannuation to unless the deceased prepares a legally binding death nomination in the precise form.  Based on the informal nature of the deceased’s Will, one would be forgiven for thinking that this was not done here.  Hence another set of expensive legal costs could be involved in sorting that out.

Protect your family … and your assets

This case highlights the benefits of having a Will properly drafted, rather than relying on a court to make a decision – with the costs of the court action to be taken out of the estate assets.

The death of a family member is a traumatic experience.  The last thing your loved ones need is to deal with is a bitter family dispute over your assets, with no clear idea of your intentions – incurring unnecessary legal costs, delays, conflict and emotional strain before the Court can make a decision.

The best action you can take to protect your family and avoid litigation is to prepare a clear, valid Will with a competent estate planning lawyer without delay.

If you would like to discuss how we can help you with your Will, or if you need help disputing a Will, please contact KHQ’s Private Wealth group (legal) for a confidential, obligation free meeting.

Senior Associate

Bridget works across our corporate and commercial and private wealth teams.

Prior to joining KHQ, Bridget worked in the corporate and commercial team at a top tier Adelaide law firm. Following... Read More