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Text message declared as deceased's will

View profile for Chloe Hammond
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Informal and digital ‘do-it-yourself’ wills, which do not satisfy the requirements of a valid will, are allowed to be admitted to probate in Australia and other jurisdictions.

In the Australian case of Nichol v Nichol (2017), the deceased left a draft text message on his phone to his brothers setting out his wishes in respect of his property and ashes, before he committed suicide. He dated the text message and at the end wrote ‘my will’. The court concluded that the fact he did not send the text message did not show the message was not intended to have effect, it was more likely he did not send the message as he did not want his brothers to intervene. The text message was therefore held to be his valid will.

The Law Commission in the UK is entering into formal discussions relating to digital will regulations. However, a will must still be made in writing and signed by the testator, whose signature is witnessed by at least two people. Digital wills are highly likely to cause more disputes. If the deceased does not make a will, their estate will pass under the rules of intestacy. Beneficiaries may have acquired a higher percentage of the estate under the rules of intestacy, rather than from what the deceased set out in their digital will.

If you would like to make or amend a will, please do not hesitate to contact one of the specialists in our Wills, Trusts and Probate team. I am based in our Colchester office and can be contacted on 01206 217350 or chloe.hammond@birkettlong.co.uk.

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