What constitutes a valid will? An Australian case around an unsent SMS opens up possibilities

In a recent case in Queensland, Australia, an unsent text found on a man’s phone after he had died by suicide was accepted as his will. This surprise ruling has raised questions about what can and can’t be considered a legally binding document.

In the Queensland case, a man had written a text on his phone shortly before his death. In the text, Mark Nichol explained that he wanted his brother and nephew to have all of his property. The text was never sent, but was discovered after his death by a friend of his widow.

The definition of what constitutes a valid will differs across jurisdictions but the broad aim is always to provide certainty and protection for the person making the will. A will is, by definition, only scrutinised for validity when that person is unable to give evidence for themselves. Legal formalities therefore offer assurances that the will is a true record of the person’s wishes.

However, not everyone manages to comply with those legal formalities fully. For example, if an English will has only been signed in the presence of one witness it will be invalid, no matter how much evidence there is that the deceased wanted it to be his or her will.

For these situations, some countries, such as Australia and Canada, and some US states, have “dispensing powers” that enable the courts to recognise an informal document or other record as a will, so the deceased’s wishes are carried out.

In the Queensland case, Nichol used the phrase “my will” in his text. That, together with a clear explanation in the text of how he wanted his possessions to be shared on his death, enabled the court to use dispensing powers to declare that the text operated as his will.

A will in your phone?

The wording of the dispensing powers generally requires that the deceased must have intended that the document in question would be their will. That means that draft documents don’t count – nor do documents describing in general terms what they would like to happen to their property when they die. That’s because in these cases, it’s unlikely that the deceased ever intended that document to operate as their will. It’s a difference between a specific intention (“this is my will”) and a general intention (“these are the terms on which I want to make my will”).

In the Nichol case, the key issue was whether the unsent text was a draft and whether it might have been revised later if the deceased had lived longer.

In another recent case, also in Queensland, the Queensland Court of Appeal had interpreted the legislation strictly. In this case, the deceased had written an informal letter which indicated her wish to leave her property to her son, and to disinherit her daughter and grandsons. However, the letter was subject to a number of alterations and deletions (including some pages being partially torn off). The court refused to exercise dispensing powers on the grounds that the letter had remained under revision. The court wasn’t satisfied that the letter was in its final form and that the deceased had wanted it to operate as her will.

In Nichol’s case, it was argued that because the text had not been sent, it should have been treated in the same way (was he still pondering its terms?). But the court rejected this argument, holding instead that the only reason that the text had not been sent was because the deceased did not want to alarm others before his death.

There have been other instances in which this requirement has not been strictly adhered to. For example, in a 2012 case in New Jersey, the deceased’s will couldn’t be located after his death but an unsigned document, that appeared to be a draft copy of the will, was found and this was admitted to probate under the equivalent US legislation. While the document probably reflected the deceased’s wishes, it is doubtful that he ever intended it to actually be his will. However, the court was prepared to overlook this difference; after all, if the copy was not accepted as his will then the deceased would have died without a will at all, and his property would have been distributed in a way that he definitely did not want.

Convincing the court

It’s in borderline cases such as Nichol’s that the question of the burden of proof becomes more important. In the US, “clear and convincing evidence” must be presented that the deceased intended for a document to be their will. This is a higher standard of proof than for most civil cases, in which the court only needs evidence that it is more likely that something is the case than that it is not.

In Queensland, the operation of the dispensing power is decided using the civil standard of proof. The use of this lower standard of proof explains why the court held that the unsent text in Nichol’s phone was effective as a will. The suggested reasons as to why it had not been sent, coupled with the fact that the text was not found by anyone who benefited from its terms, was sufficient to persuade the court that it was more likely that he did intend the text to form his will than it was not. In contrast, if it had been an unsent text in another context (general musings about what one should put in one’s will) it is extremely unlikely that the court would have been satisfied that the deceased intended it to operate as their will.

The Law Commission of England and Wales is currently reviewing the law on wills and will probably recommend the introduction of a dispensing power. While some flexibility is to be welcomed, a lenient application of dispensing powers, coupled with a low standard of proof, could lead to more uncomfortable decisions in coming years. The bottom line is this: if you want your hard earned assets to go to specific people, make a valid will.

Juliet Brook, Principal Lecturer in Land Law and Equity, University of Portsmouth.

This article first appeared on The Conversation.