A legally binding Will must be written on paper and signed by the testator in the presence of two witnesses.
These requirements are designed to prevent fraud, undue influence, substitution or mistake, given that the person who creates the document is not available to be questioned when the Will is being executed.
However, there are some exceptions, and Courts can uphold an informal Will that does not meet the formalities described above. The legislation allows for any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced. Indeed there are examples of the Court accepting tape and video recordings as informal Wills.
Validity of an informal Will was recently tested in the Queensland courts – in this case it was in the form of an unsent text message on a man’s phone, written just before the man took his own life.
In the saved draft, the man wrote “My Will” and set out detailed instructions to his brother on how to dispose of his assets including detailed bank account information. He expressed his wishes that his estate should be distributed to his brother and nephew, not his wife.
The man’s brother sought direction from the Queensland Supreme Court on the validity of these instructions. The man’s wife argued that as the message was never sent, it demonstrated that he had not made up his mind, and therefore it did not constitute a Will.
The court agreed with the man’s brother and ruled that the text message reflected the man’s intentions for it to be his final Will. Many factors were taken into consideration to support this result, including the wording of the message, the timing of its creation, the couple’s relationship history and the final location of the phone.
However, these are exceptional circumstances, and this case should not be considered a precedent for similar documents. Your Will should be prepared and executed in accordance with legal formality, to save the time, expense and emotional burden on family and friends.
If you have any concerns, or would like to update your Will, please do not hesitate to contact Angela Boyd or myself on (02) 9908 9888 or email andrew.odonnell@edneyryan.com.au.