The Queensland Supreme Court has recently made a decision on what constitutes a valid will, deeming an unsent text message evidence of a valid will.
The court has accepted a dead man’s unsent, draft text message leaving his possessions to his brother and nephew instead of his wife and son, as an official will.
The Supreme Court in Brisbane heard the 55-year-old took his own life in October 2016, after composing a text addressed to his brother, which indicated his brother and nephew should “keep all that I have”, because he was unhappy with this wife.
A friend found the text message in the drafts folder of the man’s mobile phone, which was found near his body.
“You and [nephew] keep all that I have house and superannuation, put my ashes in the back garden … [wife] will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin … My will”
The unsent message detailed how to access the man’s bank account details and where he wanted his ashes to be buried.
The man’s wife applied to the Supreme Court to manage her late husband’s assets, arguing the text message was not final because it was never sent.
But in her decision, Justice Susan Brown said the wording of the text, including the use of the words “my will” indicated the man knew what he was doing.
What is a Valid Will?
Creating a will can be complex, especially if you have many assets and beneficiaries. A will must details what your wishes are surrounding your property and sometimes it is easy to make mistakes or to forget assets that aren’t directly dealt with by your will, such as your super or insurance. Therefore, it is always recommended that you talk to a lawyer when drafting and creating your will. However, there are tips to ensure that you have a valid will.
1/ Legal age
To create a will, you must be of the age of legal majoirty, 18. If you are younger, you can ask for your parent or someone heavily involved in your life to apply to court for you to prepare a will. Usually this occurs if a younger person has inherited a large estate or has a valid reason to prepare a will to protect assets.
This is very important! If you have created a will but may suffer from an illness or injury that incapacitates you, then it can be deemed invalid. Therefore, you must have the necessary mental capacity to be able to create a will.
Also, if it can be proved that someone has unduly influenced a vulnerable person to make or change a will, then that person may have an invalid will. If you have been forced to write something in your will that you did not necessarily agree with, the estate plan will no longer be valid.
3/ Clear Intent
To make a will, you must have the intent of dealing with your assets. In the above example, the court found that he had clear intent in that he wished to give all his assets to his brother and nephew as his wife made him unhappy. Therefore, when making a will, it is a good idea to provide reasoning with all of your decisions that you have made.
4/ Adequate Decisions
In writing a valid will, you must know the nature and extent of your property and know what assets you own. As you can appreciate, the number, type and nature of assets you own throughout your lifetime changes – and so therefore must your estate planning. You also should be able to know who you’re leaving your estate to, including who might have a legal claim to your estate. For most people, making a valid will requires legal advice to ensure you have covered every aspect of the relevant law.
Usually, the person who writes the will must sign it, as well as having the will signed by two witnesses who are not receiving anything from the estate.
Creating a will and estate planning is a complex procedure. Wills should be clear, precise and easily understood. Should a will be unclear or confusing, it must be taken to court for interpretation by judge. This is a costly and time-consuming process. It is often homemade wills that are unclear, confusing or don’t cover everything they need to which require intervention by the court. It is much easier to seek advice when drafting a will to ensure you have covered everything you need to consider.
For experienced advice, contact us today.