By: Barry E. Haimo, Esq.
June 28, 2018
Should an Unsent Text Count as a Last Will and Testament?
There are specific rules for creating a Last Will and Testament in Florida.
- The person writing the will (the testator) has to be 18 or older (or an emancipated minor).
- The testator must be of sound mind.
- The testator has to sign the will or direct another person to sign it in his or her presence.
- Two competent witnesses must witness the testator (or their proxy) signing the will.
- The witnesses must also sign the will, both in the presence of the testator and each other.
Pretty specific and thorough, right?
Now, these laws differ from state to state and country to country. For example, many other states allow what is called ‘holographic wills’, which are handwritten and can forgo certain other formal requirements. But Brisbane, Australia, may be the first place to ever allow an unsent text message to qualify as someone’s official Last Will and Testament.
Draft of a “Will” Found on Man’s Phone after His Death
Back in 2016, a 55-year-old man took his own life. Later, a message was discovered in the drafts folder of his phone. In the message, he stated that he wanted to leave everything to his brother and nephew, even telling them where to find his cash and directing them to put his ashes in the back garden. It ended with two very important words: “my will.”
Those two words are important. They were a big part of the justification the judge used in ruling that the text should count as the man’s will. She also mentioned the fact that he was clearly thinking about dying when he wrote it, referencing his remark about where to put his ashes.
The man’s widow, understandably, tried to fight this ruling, pointing out how the text did not meet many of the rules for a will in Queensland. It was not written. It was not witnessed. It was not signed – either by the testator or the required two witnesses.
Oh, and also, it wasn’t even sent! It was just a draft.
Despite all these seemingly rational and valid arguments, the judge stuck to her decision and allowed the unsent text to stand as a valid will.
Why Loose, Informal Wills Are So Problematic
Now, this certainly isn’t the first time that the rules of drafting a will have been relaxed to fit a particular situation. However, in the past, those have typically involved extreme circumstances.
One of the most famous (at least in the legal world) is the case of Cecil George Harris. After the Canadian farmer became trapped underneath his tractor, he managed to carve his will into the fender of the vehicle.
Obviously, there were no witnesses. And it’s arguable at best that the will was “written.” But it’s understandable in those extreme circumstances why such a “document” would be allowed. Mr. Harris was trapped and dying. He had no other options.
The man in the Brisbane case above had no such restrictions. He could have drafted a more traditional will at any time but chose not to. Instead, he allegedly wrote a text that he did not even send, and it was found to be acceptable as his official will.
But what if this was not his intent? What if he was still trying to decide what he wanted to do (as evidenced by not sending it)? What if he didn’t actually write it? What if he wasn’t of sound mind – after all, he did end up killing himself?
This is why it’s so important to take the time to draft a formal, official will. If you do not do this, the people you leave behind have no other recourse but to examine any evidence you’ve left behind and attempt to figure out your desires… or simply distribute your assets as designated by the court, depending on the law in your area.
For most people, neither of these options is particularly appealing, so don’t let it happen to you. Get in touch with our office and make sure there are no questions about what you want to happen after your death.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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