Only in Queensland?

The Queensland Supreme Court recently found that an unsent text message on a phone was a Will, you can read more about that situation by clicking on the blue button to the right with a link to the news article.  Estate law is State based though so the question remains, is an unsent text message in NSW a Will?

 

 

The legislation in NSW

The definition of a Will is covered by the Succession Act 2006 in NSW.  There are a number of things that must occur for a document to be a will (or indeed, for a document to be a document), and these are some of the requirements:

(1) A will is not valid unless:

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

 

 

The exception to the rule

There is an exception under the Act for the Court to dispense with the formal requirements for signing, depending upon the circumstances surrounding the creating of the document.  The definition of document includes anything on which there is writing, so probably a phone screen with a typed message would meet that definition.  The next question becomes, what were the circumstances surrounding the creation of the 'document'?

 

In the case in question the man committed suicide, but first texted his brother to say he wanted the nephew not his wife to have everything.  Except he didn't text his brother, he drafted a text to his brother.  It is difficult to decide on the factual question of what a person who was about to commit suicide thought, and whether he intended to send the draft but failed to.  Certainly a draft unsigned un-witnessed Will on it's own is not enough.  The Court in this instance decided that the man intended for this text to be his Will, not that he typed a draft and didn't send it because he hadn't decided yet.

 

 

So can I draft a Will on my mobile?

The short answer is no.  It is likely that the Court will find that it is just a draft without some compelling evidence regarding urgency, like your impending death because you are dying on the side of the road following a car accident or you are about to take your own life.  Even then there is a real question about whether you actually intended for it to remain a draft, and by definition you won't be around to ask that question.  Also this case is a Queensland case, not a NSW case, so don't rely on it as it is not binding.

 

 

 

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