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Can Text Messages or Video Recordings Constitute a Valid Will?

3 April 2018

We are living and breathing in a digital age where pen and paper is becoming something of the past. A recent decision handed down by the Queensland Supreme Court in 2017 proved that an unsent text message satisfied the requirements of a person’s last Will.

The deceased tragically took his own life, leaving no formal Will but instead a draft unsent text message on his mobile phone addressed to his brother. The unsent text message detailed disposal of the deceased’s house and superannuation and also his intentions as to his ashes. At the end of the text message were the deceased’s initials, the date of the text message and the words “my will”.

In an earlier case in 2015, a DVD video recording of an elderly woman speaking her final intentions was similarly found to qualify as her last Will. Both of these cases are examples of informal Wills as opposed to formal Wills which have requirements set out under legislation.

Under the legislation a Will is valid, that is a formal Will, if:

  1. It is in writing signed by the testator (the person making the Will);
  2. The signature of the testator is made in the presence of 2 or more witnesses at the same time; and
  3. Those witnesses sign the Will in the presence of the testator.

However the Courts do have power under the legislation to dispense of these formal requirements and allow informal documents to constitute a deceased person’s Will.

Be wary though - there is no certainty under current Law that either a text message or video recording will continue to be accepted by the Courts as valid Wills. It is most important to have your Will prepared and executed in accordance with the formal requirements and to obtain legal advice so that proper consideration is given to your specific circumstances.

This article is general information only and should not be relied on without obtaining further specific information.

Michaela Schmidt Business Lawyer / Director

Michaela Schmidt is a Business Lawyer with expertise in commercial matters matters including issues relating to succession, trusts and property. .. Learn more about Michaela Schmidt

Click here to contact Michaela Schmidt.

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