Text messages, ‘whatsapps’ and ‘iMessages’. We all send them, sometimes flippantly, without a second thought as to the consequences.
Have you ever stopped to consider whether such an informal mode of communication could constitute a legally binding document? What about something as important as your Will?
This very point was brought under scrutiny in a recent Australian case. The deceased in question had drafted a text message in which he gave “all that I have” to his nephew and brother.
He never hit ‘send’ on the draft text. The Supreme Court in Brisbane held that the wording of the text was sufficient to show that the man had intended for the message to act as his Will.
The draft message gave details for what he wished to happen to his estate upon death and had information as to where his assets were located. Specific funeral instructions were also provided, with the text reading, “put my ashes in the back garden”.
The deceased’s wife argued that the text message was not a valid Will because it remained unsent and in draft.
Justice Susan Brown in Brisbane took the final two words of the text, “my Will”, as sufficient evidence of the man’s intentions. It was ruled that despite the informal nature of the message, it was still legally valid.
Sadly, the man had taken his own life. The judge looked at the time in which the draft message was prepared and formed her judgement by also considering that it was “created on or about the time that the deceased was contemplating death”.
So what does this mean for Scottish laws? Can we simply leave our testamentary writings with a few legacies and bequests in a text message?
Andrew Paterson’s recent blog, “E-Wills:” The Future of Will Making, examined this point in more detail.
The Requirements of Writing (Scotland) Act 1995 requires Wills to be signed at the foot of each page, in the presence of an independent adult witness who should also sign their name and include the date that the Will was signed.
Anything presented to a solicitor which did not abide by these rules would most likely end up before the courts, where evidence would have to be given to prove the document was intended to act as Will.
What does all of this tell us? Even in this modern day, rife with technology, it still seems there is no better alternative to having your Will prepared by a qualified solicitor. They can ensure it will be binding upon your death. Court fees, feuding families and confusion over your wishes can therefore all be avoided.