Currently UK law requires that for a Will to be valid, it must be in writing, signed by the person making the Will and witnessed by two people. Until 2006 the law in Queensland, Australia mirrored these requirements – but at that point a change was made, allowing less formal types of documents to be considered.
This change in the law has produced some surprising results to date with a case involving a man who took his own life last year recently making the headlines.
Shortly before taking his life, the 55 year old created a text message which he stored as a draft on his mobile phone. The draft declared that he gave all he had to his brother and nephew, explaining to them where to find his assets. It was never sent.
The case went to Brisbane Supreme Court because the man’s wife applied to manage his assets, arguing that the text did not constitute a valid will since it was never sent.
Justice Susan Brown said that the text message, which concluded with the words "my will", showed that the man intended it to act as his will.
The judge noted:
"The reference to his house and superannuation and his specification that the applicant was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small."
The message, whilst certainly informal, was a clear representation of the man's intentions, particularly given that it was "created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed".
Would UK courts reach the same conclusion?
Whilst the case is not the first of its kind to hit Australian courts – a DVD marked ‘my Will’ was accepted in 2013 – it is unlikely that the outcome would have been the same in the UK under current legislation. The man’s estate would have passed under the rules of intestacy which would have meant his estranged wife received the first £250,000 of the estate. Clearly this was not what he would have wanted.
Change may be on the horizon - the Law Commission is currently running a consultation on Wills, which includes suggestion that Courts should be able to consider alternative sources to demonstrate a person’s wishes. This might include a wide range of sources such as text messages, emails, chat messages, videos and audio recordings. If the proposals are brought into effect, evidence would be considered on the civil standard of proof – the balance of probabilities. This means that a version of events would be accepted if it was ‘more probable than not’. However, these proposals are only at consultation stage and may never become law.
Using a solicitor to make your Will
Most people are aware that an unsent text message, email or other similar informal document would not suffice as a valid Will. However, of those who do choose to make a Will (about a third of adults in the UK), there is an increasing trend for DIY Wills, using templates or paper packs that can be purchased from popular stores.
There is a huge risk that these DIY type wills may not meet the formalities required by current legislation or may lead to claims being made against the Estate (see for example Eileen McCormack’s case as told to the Guardian). Making a Will with a solicitor avoids any uncertainty and ensures that your wishes are legally binding. Speak to our Later Life Planning Team about making or updating your Will today.
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