Debate in Australia over wills in the digital age

Following the death of a 54-year-old man in Australia last year, an unusual text message was discovered on his phone and it ended up deciding the fate of a small fortune.

Addressed to the man's brother, the message included the instruction to "keep all that I have and put my ashes in the back garden". The message was never sent and was found by the man's wife alongside his body after he took his own life.

After noting that his wife will "take her stuff" and had reunited with her former partner, the message stated: "A bit of cash behind TV and a bit in the bank cash card pin."

It ended with the words "10/10/2016 My will", followed by a smiley face emoticon.

This message ended up at the centre of a legal battle in the Supreme Court of Queensland and has prompted discussion in Australia about wills in this digital age.

In its decision handed down earlier this month (Oct), the court ruled that the text constituted a legal will and should determine the fate of the man's house and other assets.

The case prompted legal analysts to observe that courts will increasingly need to ensure that wills have not been "hacked". Some experts noted that online wills can be valid but can also cause trouble for the family and are much less secure than old-style, signed print copies.

Professor Prue Vines, an expert on wills at the University of New South Wales, said that wills in Australia do not have to be in writing and can include a video or text message. But she said it can be hard to determine whether wills composed on computers or phones were intended to be final or were merely drafts.

"A document can include anything that has writing on it or expresses words or communicates," she told The Straits Times.

"The issue is that, with computers, it is really hard to know whether a person was drafting it or whether it is what they really want to happen after they die."

Referring to the case of the unsent text message, she added: "The critical thing is whether there was evidence that he intended the text to be a will as opposed to fiddling around on a phone..."

In the Queensland case, the wife argued that the text should not be regarded as a will because it was never sent.

However, the decision by Justice Susan Brown found that the text message was intended as a will despite its "informal nature". She found that the man intended the message to be found and that it was not sent because he did not want to alert his brother that he was about to take his own life.

"The terms of the text message reflect that the deceased wished the document to be his final will and was not merely an emotional expression of wishes," she said.

University of Tasmania law lecturer Brendan Gogarty said the decision showed "the law can keep up with technology... but it shouldn't be cause for complacency".

Noting the risk that electronic wills could be forged or altered, he said courts in the future will need to require high levels of proof that a will is genuine and "un-hacked".

Prof Vines said courts will increasingly need to rely on computer rather than handwriting experts to ensure documents were genuine, and the case showed "people should really take their will seriously". Those who are not distributing estates evenly or as expected should consider revealing this to family members before they die.