Last Will and ‘Text’ament?
A Court in Australia has held that an unsent, draft text message on a dead man’s mobile phone constitutes a valid Will.
The deceased drafted the text message addressed to his brother stating that he wished to leave him ‘all that I have’ and where to find cash located within his house. The deceased’s wife attempted to take over the management of her late husband’s assets and argued that the text message was not a valid Will as it was never sent. However, Justice Susan Brown of Brisbane’s Supreme Court held that the wording of the Will and reference to the deceased’s assets showed that the man intended it to act as his Will.
The ruling in Australia has made the headlines around the globe and left many wondering what is required for a Will to be valid. In Scotland, a Will must be in writing (texts, emails etc are not acceptable) and there are three essential requirements before any writing can be regarded as a valid Will:
- The testator must have full capacity;
- The document must have testamentary intention;
- The document must be properly signed.
There are two elements to capacity in Scotland: the testator must be old enough and of sound mind. In Scotland, anyone over the age of 12 can prepare a Will. Accordingly, the first element can be easily determined but the second element, determining if someone is of sound mind, is inherently more difficult. To be judged of sound mind, an individual must be capable of acting, making decisions, communicating decisions, understanding decisions and retaining memory of those decisions. Furthermore, those decisions must be free from undue influence or “facility and circumvention”. Many cases have been heard in the courts on the capacity of individuals, with arguments often made by disappointed beneficiaries that the final Will did not truly reflect their loved ones’ wishes or that they were influenced by someone else when drawing up the Will. Accordingly, it is very important that the Will is robust and can withstand the scrutiny of any third parties.
A valid Will must demonstrate testamentary intention. In Scotland, there is no particular required wording but it must show an intention to bequeath all or part of the testator’s estate. Again, there have been numerous cases which involved arguments both for and against “documents” ranging from envelopes and diary entries to pre-printed will forms. In the Australian court, it was held that the text message clearly showed testamentary intent as the sender wrote ‘my will’ at the bottom of the text message and the reference to his assets showed that ‘he was aware of the nature and extent of his estate, which was relatively small.’ Whilst a text message or other “document” may be able to show testamentary intent, it has taken protracted litigation and court procedures to get to that stage, no doubt costing the parties thousands of dollars.
Formalities of signing
It is essential that the Will is signed at the end of the document to be considered valid. By signing at the end of the document, it is taken to mean that the testator has made his or her final decision. Whilst signing the Will at the end of the document will make it valid, it will not be self-proving, i.e. it will not prove itself. The Will would still need to be established as valid, in court, which would involve costs and time delays.
To be self-proving, a Will must be signed at the foot of every page and be witnessed by one person on the last page of the document. A person named in the Will can act as a witness, unlike in England, however, this may lead to an assertion that there was undue influence by the individual witnessing the Will. Accordingly, it is best for an independent, third party to act as a witness.
Would a text message ever be considered a valid Will in Scotland?
As the law stands, an email, text message or other non-paper “document” cannot be a valid Will in Scotland. The Law Commission in England is consulting on relaxing the rules, but there are no proposals to do so in Scotland, and with good reason: making a Will is a serious matter, requiring serious consideration and a high element of formality.
Given the strict requirements for a valid Will, never mind the potential for making unintended mistakes, homemade Wills are not to be encouraged. These can often lead to conflict if not court action, rather than certainty as to the deceased’s wishes. What is the moral of the story? Given the expense of establishing the Australian text message as valid, the deceased’s family must surely now feel that there is no substitute for a properly drafted, tailor made, Will, prepared by your Solicitor.
This article was co-written by Beth Moffat.