– By Tania Brady, Senior Lawyer
Earlier this month the Queensland Supreme Court decided that an unsent text message was a valid Will.
Before you take this as justification to join the long list of people who say to me, â€œWhy canâ€™t I just write a list of who gets what? I donâ€™t own much anyway,â€ â€¦ read on.
This is a sad story. Mark was a troubled man. He had mental health issues and a rocky one year marriage to Julie. Two days after leaving Julie, Mark committed suicide in his back shed. Found beside his body was his mobile phone with a text message saved in drafts that said,
â€œDave â€¦ you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish. Julie will take her stuff only. Sheâ€™s ok. Gone back to her ex AGAIN. Iâ€™m beaten. A bit of cash behind TV and a bit in the bank. Cash card pin 3636 â€¦ My will.â€
Mark had no other formal Will. This meant that, if it was not for the text message, he would be regarded as dying intestate, or without a Will, and his estate would go to his wife, Julie, and his son from a previous relationship.
Understandably, Julie and the son argued that the phone message could not satisfy the formal requirements of a valid Will and as such, the rules of intestacy would apply so that they would inherit Markâ€™s estate.
Dave and Jack, Markâ€™s brother and nephew, argued against this saying that:
1. The text message was a document according to law;
2. Mark clearly meant for it to be testamentary in character when he wrote it;
3. There was no evidence that Mark was of unsound mind (the fact that he suicided and had mental health issues was not enough to establish that he lacked the capacity to understand what he was doing); and
4. Mark and his son were estranged so it was not unexpected that he wasnâ€™t left anything in the text.
And the court agreed.
But this does not mean that you should not bother with a Will and simply type a text message saying who gets your stuff just before you jump from a plane or have that life threatening surgery.
The trouble is, you may miss something and the court could decide that your text message isnâ€™t enough. Even worse, your family and friends will have to apply to the court for a ruling and you donâ€™t need me to tell you that courts and lawyers cost a lot of money. In Markâ€™s case, the costs of both sides were paid from the estate. Thatâ€™s a lot of legal fees that could have been avoided if he had met with his friendly estate lawyer and properly recorded his wishes in a formal Will.
My advice? Spend the time now with a qualified wills and estates professional to get it right. It is a good investment and will save your loved ones a lot of time, energy and money down the track.
If youâ€™re interested in reading the full judgment, you can find it at here