Running Away from Formalism One Unsent Text at a Time

By Kellina Heylek

In 2017, the average American adult spent almost three hours a day on his or her mobile device.[1] Not only are individuals using mobile devices more often, but they are becoming more dependent on them as time goes on. Users can access their phones at any time and have endless amounts of information at their fingertips; even information regarding how their property will be handled long after their death. Whether it be a legal service provider or law firm apps, various outlets on mobile devices allow the viewer to gain information about the process of drafting a will or leaving property within a trust. However, the laws in many jurisdictions across the world still call for the traditional formalistic process of drafting wills. Technological advancement and access to information virtually in any place with an internet connection is not the only influence on informal will drafting. Tragedy and crisis, such as suicide or a plane crash, combined with the ability to draft a digital document at any time, has forced courts around the world to reconsider the formalistic requirements of drafting a will.

Australian Courts have been breaking ground in accepting informal wills that are found on various digital platforms after crisis and unexpected tragedy.[2] In the past ten years, the Australian Courts have allowed various wills to enter probate that have been found as draft Word documents on laptop computers and draft writings on the Notes app on the decedent’s iPhones.[3] In fact, the New South Wales Supreme Court found a valid written will was displaced by a video will the decedent made two weeks after the traditional will.[4] However, in each case where an informal digital will was accepted into the probate court, the decedent’s had displayed clear testamentary intent.[5] The clear testamentary intent was found based on a combination of facts, including metadata pertaining to each documents’ creation, editing, and accessibility, the writing was titled either “Will” or “My Will[,]” and, in some cases, the decedent told others about the location and nature of the digital document.[6]

Recently, the Australian Courts were brought back into the limelight when the Supreme Court of Queensland ruled an unsent text message would be considered a valid will and admitted it to probate.[7]  Before tragically taking his own life, the decedent drafted a text message giving his remaining possessions to his brother and nephew.[8] The draft text message addressed to his brother read

Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie 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 3636

MRN190162Q

10/10/2016

 My will[9]

The Court further described the unsent text message as having a paperclip and smiley emoji between the words “My will.”[10] The forensic evidence showed the message was created sometime before the decedent’s death, there were no other writings on his phone evidencing testamentary intent, and the assets described in the text were identifiable.[11] Also, the Court was presented with statements by the beneficiary and friends who had conversations with the decedent about his wife and child receiving none of the decedent’s property if something were to happen to him.[12] The decedent did not have a will, and if the unsent text message was rejected by the Court as his valid will, then his wife and child would receive his property.[13] Based on the forensic evidence, additional statements, and the absence of a relationship between his wife and son, the Court determined the text message was a proper document describing the decedent’s testamentary intent which he intended to operate as his will.[14]

The controversy surrounding the ruling stems from individual’s who would like to keep the formalistic aspects of will formation.[15] Generally, a valid will is in writing, attested by at least two witnesses, and signed by the donor.[16] However, in 2006, the Queensland government decided to amends its formalistic regulations to accept less formal types of documentation provided supplemental evidence of the decedent’s intent.[17] Similar to the flexibility offered by the Queensland government, eighteen states in the United States have adopted the Uniform Probate Code that allows for unconventional wills so long as basic requirements are met.[18] Some of the basic requirements include the testamentary intent of the donor and testimony from witnesses.[19] Formalistic supporters want to keep away from the unconventional formation of wills in order to keep the sanctity of the process and allow for the individual to truly understand that once the will is drafted and executed, the donor does not have the ability to change it.[20]

Although informal wills are more accepted in some jurisdiction, the focus is still on the donors intent.[21] An unsent text message could still not give rise to the necessary donative intent that the courts have in mind. However, the combination key facts—witness testimony, conversations the decedent had with close friends, the metadata found by experts, and the absent of a will already put in place—could sway the courts to follow a more informal document. As stated above, the 2006 legislation and ruling regarding informal digital wills in Australia has led their culture to be more focused on the evidence and intentions of the donor over the formalities of creating a will.[22] Furthermore, emerging access to technology coupled with the turn away from formalism is likely to result in more cases like the unsent text message.

[1] How Much Time Do People Spend on Their Mobile Phones in 2017?, Hackernoon (last visited Mar. 12, 2017),  https://hackernoon.com/how-much-time-do-people-spend-on-their-mobile-phones-in-2017-e5f90a0b10a6.

[2] Rachel Olding, Being of Sound Mind and Pixels: Wills in the Ditigal Age, The Sydney Morning Herald (last visted Mar. 12, 2018), https://www.smh.com.au/national/nsw/being-of-sound-mind-and-pixels-wills-in-the-digital-age-20140725-zwokc.html.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Nichol v Nichol & Anor (2017) QSC 200 (Austl.), http://www.austlii.edu.au/cgi-bin/sign.cgi/au/cases/qld/QSC/2017/220.

[8] Id. ¶ 3.

[9] Id. ¶ 13.

[10] Id. ¶ 14.

[11] Id. ¶¶ 23-25.

[12] Id. ¶¶ 29-30.

[13] Id.

[14] Id. ¶¶ 41-48, 59.

[15] Juliet Brook, I Bequeath U . . . When a Text Message Can Count as Your Will, The Conversation (lasted visited Mar. 12, 2018), https://theconversation.com/i-bequeath-u-when-a-text-message-can-count-as-your-will-88207.

[16] Saqib Shah, Unsent Text Message Accepted as Valid Will by Australian Court, Engadget (last visited Mar. 12, 2018), https://www.engadget.com/2017/10/12/text-message-will-australian-court/; see also Unsent Text Accepted as Dead Man’s Will by Australian Court, BBC News (last visited Mar. 12, 2018), http://www.bbc.com/news/technology-41580970.

[17] Id.

[18] Gail Buckner, Texting Your Will . . . Will it be Upheld?, Fox Business (last visited Mar. 12, 2018), http://www.foxbusiness.com/features/texting-your-will-will-it-be-upheld.

[19] Id.

[20] Id.

[21] Supra note 15, 17.

[22] Supra note 7, 15.