Generally (in Queensland) for a Will to be valid and enforceable, it must be in writing and signed in front of two independent witnesses; who are usually over the age of 18 years old, not visually-impaired and not included as beneficiaries to the Will.
The law was amended in 2006 to allow the courts to accept less formal documents as Wills. A recent decision in the Queensland Supreme Court demonstrates just how the Courts have progressed and are willing to accept a document as a legally-binding Will.
Prior to taking his own life, a 55 year old man drafted a text message stating that he wished to leave all of his possessions to his brother and nephew. A friend of the deceased found the message in the drafts folder of the man’s phone which was found near his body.
The message read; “keep all that I have, house and superannuation, put my ashes in the backgarden… a bit of cash behind TV and a bit in the bank… my will.” The message also read “[wife] will take her stuff only she’s gone back to her ex.”
The applicant in the Supreme Court Proceedings, the deceased’s wife, argued that she was to be left to manage her late husband’s assets as the text message had not been sent.
However, Justice Susan Brown ruled against the applicant stating that the deceased was well aware of his intentions due to the specificity of the distribution of his assets.
The relationship with the deceased’s brother, nephew and wife were taken into consideration as evidence that the deceased intended for his wishes in the text message to be final.
Justice Brown further noted the use of the words “my will” in the text message further indicated his intentions for the text to be a binding legal document. The Judge took into consideration the relatively small nature of the deceased’s estate in reaching a decision.
While modern courts may be exercising some flexibility in determining what constitutes a Will, the amount of evidence required to satisfy a Court of the deceased’s intention still remains extremely high. The circumstances surrounding the formation of the document are vital in determining whether an informal document will be recognised as a valid Will.
It is important not to leave the construction of your Will to the degree of the court system as this involves high costs and doesn’t ensure the validity of your informal Will.
We strongly encourage all clients to take control of their affairs and manage these affairs wisely to draw a formal and valid Will, and update the same with any change in circumstances.
A Will is usually one of the cheapest services you can obtain from a legal office – take advantage of that!