Can an unsent text message amount to a Will? What about an email or even a WhatsApp message?

Interestingly, an Australian court has recently held that a text message did in fact amount to a Will. In doing so, it relied on the reference to “Will” in the text message, the date of the message, the deceased’s electronic signature as well as the deceased’s circumstances and intentions for the succession of his estate.

Clearly, there are certain requirements which must still be met, but it shows how technology is steadily effecting change on the law. However, at present, it is unlikely a court in England and Wales would come to the same conclusion. 

What if you could make a Will online? The Law Commission consultation on Wills is looking to bring them into the 21st century by the introduction of electronic Wills. Due to the increasing reliance on digital technology, this could provide a more accessible and flexible means of providing instructions for the succession of your estate. However, it also raises important but tricky questions about how to protect such Wills from fraud and cyber-attacks as well as undue influence against vulnerable people. If it is possible for a wannabe DJ to hack your ebay account and purchase record decks (yes this has happened to me!), it begs the question of what is preventing someone from accessing an electronic Will and amending it for their benefit?

Evidently, there would need to be strict safeguards in place and the identity and intentions of the testators would need verification. The Law Commission consultation closed on 10 November 2017 and it will be interesting to see what will happen next. Will it be a Snapchat Will? Perhaps this is more likely to happen in Australia where judges have also used Eminem rap lyrics in their judgments.

For the moment, however, it is better to stick to the conventional method of making a Will and, particularly if you have a large estate, enlist assistance with estate planning to maximise the assets you pass on to loved ones.

The content of this article is for general information purposes only. For further information regarding Wills please contact Melissa de Carvalho from Birketts’ Private Client Advisory Team.

This article is from the winter 2017-18 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website. Law covered as at January 2018.

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