The Danger of Digital Wills

18 JAN 2019

 

In the 12 months since the infamous “text message Will” case (Re Nichol) was decided in the Queensland Supreme Court, there has been an increased discussion around what it means to make a Will and what will count as a valid will once you pass away.

In this case, the Court found that an unsent text message addressed to the deceased’s brother was in fact a valid Will. The reason for the decision came down to the fact that the deceased had labelled the text message “My Will”, dated the unsent text message, provided specific details about how he wanted to gift his property, as well as bank account and pin numbers for access to his accounts. The fact that the deceased drafted the text message just prior to ending his own life was also a significant reason for the Court’s decision.

While the decision in this case is interesting, it is the exception to the rule. In a similar case, which involved a word document on a computer, the Court found that the word document was not a valid Will because the deceased knew that a Will needed to be signed. Given the difference in the decisions, it is clear that the law is not yet uniform in this area.

What is unmistakeable though, is the fact that in both cases a large proportion of the Estates were taken in applications to the Court to find out whether or not the “Wills” were legally valid. This is a key danger of digital Wills.

Along with the potential costs, other risks of a digital Will include: 

  • The added stress on your loved ones: Once you’re gone, your family are left to deal with your Estate. If your Will is not clear, this may cause more confusion and heartache for your loved ones already struggling with your loss.
  • Your beneficiaries may be worse off: A digital or DIY Will does not create tax or asset protections for your beneficiaries in the same way an experienced lawyer can.
  • You may not know what you can control for in your Will: Superannuation, for example, will not generally form part of your Estate. It is important to know to who may benefit from your super and how you can control who receives your superannuation once you pass away.
  • You may not account for all of your assets: If you do not account for the whole of your Estate in your Will, your Estate may be found to be intestate. In this case, there are strict rules on who can receive your Estate and it may not be the people you wish.

To avoid having your Estate tied up in the cost of litigation and creating uncertainty for those who are left, it is important that you receive proper legal advice and have your Will reflect your exact wishes. To ensure this is the case, please contact our Estate Planning expert Krystle Wolthers on (02) 4626 5077 today. 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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