The Supreme Court of Queensland has decided that an unsent text message left in the drafts folder of a man’s mobile phone should constitute a valid will.
Every state and territory has different legislation governing succession in Australia, but each Act offers specific rules on how to execute an official will.
In both Queensland and NSW, the testator must sign the document in front of at least two witnesses, who are also required to provide signatures. However, the courts can set aside these restrictions and classify an informal will as valid.
Let’s examine the Queensland case in more detail, as well as how it could affect future inheritance disputes in NSW.
Finding the will
The 55-year-old man took his own life in October last year, leaving a text message on his mobile phone that specified how he wanted his estate distributed upon his death.
The man left both his wife and son out of the will, instead bequeathing his estate to his brother and nephew. His assets included a property, his accumulated superannuation, cash in a bank account and various possessions.
According to Supreme Court documents, the phone was found next to the deceased’s body. The draft message was discovered when the man’s wife asked a friend to access the phone in order to see the deceased’s contact list so that she could inform people of his death.
The text was addressed to the man’s brother but had not been sent.
Judge decides validity of will
Justice Susan Brown ruled that while the will did not meet the formal requirements of the state’s Succession Act 1981, the phone message should be considered legitimate.
“The informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions,” Justice Brown explained.
“I consider that the terms of the text message were intended by the deceased to represent how he wished his property to be distributed upon his death.”
Specifically, Justice Brown highlighted the fact that the deceased had used the terms “my will” within the text as proof that it outlined his testamentary intentions.
Contesting a will in NSW
While this particular case occurred in Queensland, the parallels between succession laws in the Sunshine State and elsewhere in Australia mean the decision could have implications for similar claims in NSW.
The case emphasises how legislative requirements for a valid will can be set aside given the right circumstances, which may give some claimants hope that their case may succeed in court.
If you would like to discuss contesting a will in NSW, please get in touch with Gerard Malouf & Partners Will Dispute Lawyers for more information.
