Twitter, Text or Post a Status to Bequeath your Estate!

In this modern era of social media, where the President of the United States makes dangerous remarks tantamount to declarations of war on Twitter, it is no surprise that the validity of our media activity is daily being considered by Courts around the world and that intention and at times culpability (yes, even for murder folks) is found in text messages and the like.

In this interesting case before the Queensland Supreme Court, a family was disputing whether an unsent text message bearing the words "my will", complete with an emoticon (just a smiley face which seems a lost opportunity given the array of other appropriate and amusing emoticons which could have been employed) constituted a valid will.

The deceased's brother and nephew petitioned the court to hold that the text message was the deceased's final will. The deceased's wife and son from a previous relationship (both of whom were cut out of the SMS will), argued it should not.

The deceased committed suicide and the next day, the text was found on his mobile phone. It read that his brother and nephew should, "keep all that I have house and superannuation, put my ashes in the back garden". Of his wife, he said she should, "take her stuff only she's… gone back to her ex AGAIN I'm beaten". The text concluded with the deceased's bank details before finishing with the words, "my will" and sealed with a smiley face emoticon.

In determining whether the will was valid, the Judge looked at the history of the relationship between the deceased and his wife and the question whether it was the deceased's intention to create a legally binding final will. The wife clung to the fact that the text message was unsent which in her mind, indicated that he was not sure that this was what he wanted.

The Court found that the relationship was a rocky one. The wife had left on at least three occasions in the one year of being married out of a total relationship of three years and seven months. The wife told the Court that the weekend prior to his death, the two had spent the day gardening and packing books up for Lifeline. However, the Court found that this simply proved the two were friends, not that they had resumed their relationship.

As to whether the informal nature of an unsent text message could be held to be something as formal as a will, the court found that it could. In this regard the Court referred to another matter in 2013, where a DVD labelled "my will" was found to be a valid will. In another case in 2015, a video will displaced a written will made merely 2 days earlier.

The court concluded that the unsent text message was a valid will. It was made on or about the time when the deceased was contemplating his death and even stated where he wanted his ashes to go.

However, the decision does not rule out the possibility that the son and wife could make a family provision claim.

A family provision claim can be made to a Court if a person believes they have not received adequate provision for their maintenance, education or advancement in life under the will of a relative, spouse, former spouse or a person with whom they were in a close personal relationship.

Generally, a family provision claim must be made within 12 months of the deceased passing. A person making a claim is required to put on evidence as to their financial positions to support the claim.

The law of will-making is complex. Whilst this decision appears to simplify the form in which a legally-binding will may be made, it does not guarantee that people deliberately not provided for, won't be able to get their hands on a portion of a deceased person's estate. Whether you're making a will or believe that by your relationship, you ought to be a beneficiary of someone recently departed, seek legal advice. This is the best safeguard to ensure last wishes are respected or on the other hand, family ties are honoured.