Based on an unsent text message on the deceased’s mobile phone, the Supreme Court in Brisbane has ruled this as a valid Will, giving the man’s estate to his brother and nephew, rather than his widow, as specified in the unsent message left in the draft folder of his mobile.
This recent case again highlights the need to have a formal Will to direct where you want your estate to go, without having the court to guess where your intentions lie.
The 55 year old man took his own life in October 2016 and left no formal Will. The court heard the mounting evidence on the turbulent relationship between the deceased and his wife of one year which further substantiated his unsent SMS specifying that his brother and nephew should “keep all that I have” because he was unhappy with his wife who has “gone back to her ex AGAIN I’m beaten”.
The deceased man’s wife applied to the Supreme Court to manage her late husband’s assets, arguing the text message was not final because it was never sent.
But in her decision, Justice Susan Brown said the wording of the text, including the use of the words “my will” indicated the man knew what he was doing.
“The reference to his house and superannuation and his specification that the applicant was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small,” she said.
Decisions like this, which traverse the intersection of law and technology, show that the law keeps up more than we think. But by no means is this a call to disregard a formal Will.
According to the ASIC MoneySmart website, it’s estimated that nearly half of all Australian die without a Will. And this probably isn’t a figure that’s going to drop as younger generations are even more unlikely to write a Will (or to write anything on paper at all). A formal Will gives the greatest possibility to having your true testamentary wishes to be followed in most cases. Legal disputes are costly and take a long time to resolve.
How do you draw up a formal Will? In most states of Australia, a valid Will must be in writing and signed by you in front of two witnesses, both of whom must be over 18 years old and are not beneficiaries in the Will. While it is possible to write a Will yourself, it’s best to seek legal assistance to ensure your wishes are written accurately.
If you would like an introduction to a lawyer who can help prepare your Will, simply get in touch with us and we will point you in the right direction.
Visit our estate planning section to learn more about our service.
If you would like to speak to us about creating your Will, please feel free to give us a call on 02 9913 9995. We are located in Narrabeen on the Northern Beaches of Sydney.
Disclaimer: This publication has been prepared for general information purposes only. It is not specific advice to any particular person. You should consult an authorised Align Financial adviser before making financial decisions.
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