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12th October 2017

Can you make a paperless Will by text?

An Australian court has accepted an unsent draft text message on a man’s mobile phone as his official Will. Although this wouldn’t be valid in England – yet - there is a move towards it which makes this case relevant to us.

The circumstances were that the 55 year old sadly took his own life last year and the message was discovered in his drafts folder after his death. The message gave details of how to access his bank account and where money was hidden in his house. The message left “all that I have” to his brother and nephew and specified his estranged wife should not inherit. His wife, who would otherwise have inherited, claimed the message was not a valid Will because the message was never sent, so lacked certainty. Of course there were no witnesses nor even, as far as we’re aware, direct proof that he typed the message himself.

It was ruled that the message, which ended with the words “my Will”, showed that the man had intended it to act as his Will. The fact he referred to his house and pension and specifically stated that his wife could take her own things indicated he was aware of the nature and extent of his estate. Just because the message was of an “informal nature” did not stop it representing the man’s intentions.

In Queensland, typically for a Will to be valid it must be written and signed by two witnesses, (which are also requirements for a valid Will in England). However in 2006 the law changed in Queensland to allow less formal documents to be considered as a Will. In 2013 a DVD marked “my Will” was similarly accepted as a valid Will.

As this was an Australian case this does not have direct impact on English law. However it does provide an interesting view of how things may develop in the future with ever increasing use of electronic communication.

This is particularly relevant as currently the Law Commission is holding a public consultation on Wills which the Law Society welcomed as a step towards updating our Will-making laws (which mainly derive from the Wills Act 1837) to keep them fit for purpose in the 21st century. One of the proposals they are consulting on is whether to enable the court to dispense with the witnessing formalities for a Will where it is clear what the deceased wanted. The Commission also wants to introduce electronic Wills, one day.

While relaxing the rules may result in significant benefits in terms of convenience, it would introduce challenges in ensuring protection against the risks of fraud and exploitation. How do we know the message was typed by the deceased? and as it was a draft did it reflect his true intentions? All these points need to be considered in detail and it is hopeful that solutions can be found.

In any event it seems likely that electronic Wills may become a reality in the not too distant future, in which case we will keep you informed on this site. Meanwhile, if you would like to make a (traditional and valid) Will, then please contact Rachel Hawkins on 01604 233233 or click here to email Rachel.

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