Draft text saved on phone ruled to be final Will

Recently, the Queensland Supreme Court ruled that an unsent text message with the words “my will” and a smiley face was a valid and final Will. The 55-year-old man took his own life in October 2016, and the Will was found in the drafts folder of his phone the following day. This provided that the man’s brother and nephew should be the beneficiaries of the Will, and effectively removed the man’s wife and son from a previous relationship from receiving any benefit. It is important to note that despite this ruling, the man’s wife and son remain able to contest the will under family provision laws for a share of the estate. This is an interesting example of the complex nature of Wills and estate planning, and demonstrates the need to work with an experienced solicitor in this area of law.

The facts

The Will was addressed to the man’s brother and stated that his brother and nephew should “keep all that I have house and superannuation, put my ashes in back garden”. It also stated that the man’s wife should “take her stuff only she’s… gone back to her ex AGAIN I’m beaten”. The Will also contained the man’s bank account details and was signed off “my will” with a smiley face.

The man’s wife has since argued that the text message should not be treated as his final Will due to the fact that the deceased did not send the text message. She also argued that this was evidence that the deceased had not yet made up his mind. The wife was seeking to regain control over the estate and assets.

The result

The draft text message was ruled as being the final Will of the deceased. Justice Brown stated that the wording of the text, including the specific inclusion of the words “my will” indicated deliberate intention to create a Will. She also stated that the mention of the specifics of his estate, such as his house and superannuation, indicated that the deceased was aware of the nature and extent of his estate. Furthermore, Justice Brown also noted the “difficulties” in the relationship between the wife and the deceased, and suggests that the deceased intended to prevent his wife from benefitting under the Will.

The law on Wills

If you die without a Will, you will be said to have died ‘intestate’. In this situation, your assets will be distributed according to the relevant state law. This will be outside of your control and may mean that your assets will not be distributed in the way that you would have liked. The Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate in New South Wales. The general order of inheritance is as follows:

  • Spouse
  • Children and Grandchildren
  • Parents
  • Siblings
  • Grandparents
  • Aunts and uncles
  • Cousins
  • The state

Usually, if there is a current spouse, then they will get the entire estate except in certain circumstances. This includes if the deceased had children from a previous relationship. Therefore, if this case had occurred in New South Wales, both the deceased of the spouse and his son from a prior relationship would have inherited the estate.

Contesting Wills

You have the freedom to leave your estate to whomever you wish. However, your Will can be contested under a number of circumstances. People who are able to bring a claim include the spouse of the deceased, a de facto partner, a child (regardless of their age) and even a former spouse.

The court will take various factors into consideration when determining whether a claim can be successful, including the nature and duration of the relationship between the deceased and applicant and the nature and extent of any obligations or responsibilities owed by the deceased to the applicant. It is important to note that those that qualify as “dependants” are more likely to be successful when contesting a Will. For more information on this, read our recent blog.

Tips for estate planning

Due to the complexities involved in Wills and estate planning, it is highly recommended that you consult with a solicitor to ensure that your wishes are satisfied. If you’re concerned about your Will, come and see our solicitors in Newcastle. We are highly experienced in estate planning, especially in Complex Wills and Blended Family Wills.

Are you looking for an experienced estate planning solicitor in Newcastle, Sydney or the Hunter to assist you in your legal matter?  Call us on (02) 4929 7002, email us or complete an enquiry form.

Image: ‘Woman holding phone’ by Mad fish Digital (used with permission from Mad Fish Digital).