Australian Court Accepts Unsent Text Message as Dead Man’s Will

A court in Queensland, Australia accepted an unsent text message on a dead man’s phone as his valid will. In the text message the married man left everything he had to his brother and nephew before taking his own life. The court allowed the draft text message to act as a valid will because the wording in the text indicated that the man intended it to act as his will.

Formal will requirements in Queensland require that a valid will be in writing and signed by two witnesses, however the law was changed in 2006 to allow informal types of documents to be considered wills. Under the 2006 changes, the Supreme Court of Queensland may recognize a document as being a will if the court is satisfied that the decedent intended the document to be his will even if the document lacked will formalities.

In Oregon, formal will execution requirements are that a will be in writing, signed or acknowledged by the testator in the presence of two witnesses. The two witnesses must also attest the will by signing their own names to the will within a reasonable time before the testator’s death. The will being in “writing” does not include an electronic record, document or image.  (See ORS 112.235.)

Oregon law does provide an exception to the formal will execution requirements. A writing may be treated like a properly executed will if a court is convinced the evidence shows that the decedent intended the writing to be the decedent’s will. (See ORS 112.238.) However, since a “writing” does not currently include electronic writings, an Oregon court may hesitate to rule that a text message or another electronic document intended to be a will is a valid will. (See ORS 112.235(4).)

Will electronic wills be in our future? Nevada has already enacted a law that authorizes electronic wills, (See NV Rev Stat § 133.085 (2013).), but while in 2017, several other states sought to enact legislation to allow electronic wills, that legislation failed.

In October 2017, the Uniform Law Commission Drafting Committee on Electronic Wills (“ULC”) met in Philadelphia. Victoria Blachly, a Trust and Estates partner with Samuels Yoelin Kantor LLP, attended the meeting. The views of the various stakeholders around the table were varied, but with the constant pressure of technology pushing for convenience, change is in the wind. The ULC has a deliberate and thorough process that takes at least two years before suggesting new potential legislative language, so it remains to be seen what the organization will support. Will convenience prevail over concerns of abuse?  Will technology serve to make estate planning easier or cause more problems? Stay tuned.

Special thanks to guest SYK author Daniela Holgate. Daniela is a 3L and 2018 J.D. candidate at Lewis & Clark Law School.

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