Don’t rely on the courts to OK your will
A Queensland, Australia, 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 his wife.
A friend found the text message in the drafts folder of the man’s mobile phone, which was found near his body.
The unsent message mentioned how to access the man’s bank account details and where he wanted his ashes to be buried.
The man’s wife took the case to the Brisbane Supreme Court to manage her deceased husband’s estate.
Her argument was that the text was not valid, because it was never sent.
But, Judge Brown said the phrasing of the message (which included the words “my will”) indicated the man was of sound mind.
In the text, he’d also directed for his ashes to be put “in the back garden,” and wrote that he had a “bit of cash behind the TV, and a bit in the bank.”
The decision also took into account evidence of the man’s fraught relationship with his wife.
In her decision, Justice Brown said the wording of the text, including the use of the words “my will” indicated the man knew what he was doing.
Justice Brown also found the man had no relationship with his son, and while he and his wife did have happy times, there was evidence they had a “rocky” relationship.
“The deceased and the applicant had difficulties in their relationship, and had separated on a number of occasions for short periods of time, the most recent occasion being just days before the deceased took his own life,” Justice Brown said.
The judge added that this ruling would not stop the man’s wife and son making an application under family provision laws for a share of his estate, which included a house and superannuation account.
The Queensland government advises that a valid will must typically be in writing and signed in front of two witnesses.
But a change in the law in 2006 allowed for less formal types of documents to be considered as well.
A holographic will, without witnesses, being deemed acceptable, isn’t a new phenomenon.
For instance, the shortest will to historically be recorded was of a Czech man who scribbled “everything to wife” on his bedroom wall, in anticipation of his death.
A dying Canadian farmer’s will, etched onto the fender of a tractor he was trapped beneath, was also determined by the courts to be valid, almost 70 years ago.
It used to be the case that if you did not strictly comply with the legislation as to the drawing of a will, it would not be considered a will.
In Ireland, there are strict requirements and formalities that must be adhered to for a will to be valid.
Even though the wills in these unusual cases were held to be valid, it involved court cases, and much time, stress and expense, when it could all have been avoided by instructing a solicitor.
As you read through this particular Queensland case, you get a sense of the amount of evidence that has to be produced to satisfy a court.
If a person hasn’t drawn a formal will, there are some significant hurdles which must be overcome to establish that the document that looks like a will, is in fact, a will.
So despite the results in these cases, the lesson to be taken from this article is to instruct a solicitor to draft your will, to ensure it will be valid upon your death, and that your wishes will be honoured.
