A recent decision of the Brisbane Supreme Court reported by various news outlets has highlighted the different approach taken by other countries to the formality requirements of wills.
Justice Susan Brown ruled that an unsent text message found in the drafts folder on the mobile telephone of a man who took his own life last year should be accepted as a valid will. The man composed a text message addressed to his brother in which he said he gave “all that I have” to his brother and his nephew. The message went on to give details of where cash was hidden in his house and his bank accounts, in addition to expressing a wish as to where his ashes should be placed. Despite the informal nature of the message, the Court decided that the wording of the text was sufficient to rule that the man intended it to have legal effect as his will. The judge concluded that the unofficial form of the text message did not prevent it from representing the man’s intentions and the content of the message indicated he was contemplating his own death. Despite the man’s wife seeking to argue that it was not a valid will because the message was unsent the Court concluded the fact the man had used the words “my will” at the end of the message indicated that he intended the text to act as his will.
In a similar way to this country, a will must be written and signed by two witnesses over the age of 18 to be valid in Queensland. Although the rules have been previously relaxed in Queensland to allow less formal documents to be considered a will, many in this country might have been surprised that an unsent, draft text message could be deemed by a Court to be a legal will. The approach taken by the Australian Court is a stark contrast with the approach taken to the execution formality requirements for wills in England, which are applied strictly even in cases where a testator’s intentions are otherwise clear.
The Law Commission is currently undertaking a consultation with a view to updating the current laws governing the legal formalities required for wills which date back to the middle of the nineteenth century. The clear view arising from the previous consultation amongst those working in this area of law is that the introduction of updated provisions is long overdue to harmonise this area with the practicalities of the modern world. Whilst a large part of the consultation is focussing on testamentary capacity, the Commission is also considering a proposal to grant the Court power to dispense with formality requirements and recognise a will as valid in cases where the testator’s intentions were clear but harmless mistakes have been made in the execution of formality requirements. Amongst the Commission’s other proposals under consideration include the legalisation of electronic wills, subject to identifying safeguards to allow the testator and witnesses to sign the documents securely.
The Law Commission’s consultation remains open until 10 November and so the final proposed changes to the law arising from the reforms are yet to be finalised. It seems the Commission is proposing to grant the English Court the kind of discretion allowed in Queensland which was used by the Court there. However, even if the proposed changes are implemented, it is difficult currently to envisage an English Court ruling an unsent, draft text message to be a valid will. Whilst the case in Brisbane may be an extreme example of a Court implementing such a flexible approach to formality requirements, the case does highlight the approach taken by other countries in this area which seems not to be vastly different from the current Law Commission proposals and a more sensible approach in the modern world.