An Australian court recently accepted an unsent, draft mobile text message as an official Will. Found on his phone after a man’s death, the text left all that he had to his brother and nephew and detailed bank information, as well as instructions for the scattering of his ashes. The message concluded with the words ‘my will’. The man’s widow contested the validity of the Will, based on the fact that it had not been sent but the court ruled that the informal nature of the message did not stop it representing the man’s intentions.

Were these really the man’s intentions? How many people write something, even a whole e-mail message, say, in anger, and then decide not to send it?

Would a similarly informal Will be accepted as valid in Scotland? The answer is probably not. Scotland has strict rules that Wills need to comply with under The Requirements of Writing (Scotland) Act 1995 which not only state that the Will must be signed on every page and witnessed, but also state that it must be on paper. In contrast, in Australia, the law was changed in 2006 to allow more informal documents to be accepted as Wills. Recent examples include a DVD titled ‘My Will’, audio recordings, and an unsigned, electronic Word Document titled ‘Will’.

Scottish courts in the past have however accepted Wills that have not been executed in accordance with the 1995 Act, though this has taken time and money to prove in court. A letter to a deceased’s sister 16 years before her death in which she said “I haven’t made a Will, but everything I have is for Billy” was held to be a valid Will, but a document headed ‘Will’ with a list of names and figures, signed by the deceased was found not to be valid. Most recently in 2012, a signed diary entry in which the deceased had written “*Please remember. If Anne is still Alive, I want her to have my wealthy remains….IT IS MY WISH” was found to represent the testamentary intentions of the deceased.

The key to the courts giving effect to a Will is to make sure it shows testamentary intention, i.e. did the person writing it intend it to act as a Will in distributing his or her estate on death. However, even if it is determined that the writing is a Will, does it actually distribute the estate in the way the writer intended?

Many homemade Wills simply do not do what the writer intended. The law regarding Wills has certain quirks and presumptions of which the writers of homemade Wills are not aware. In the future Scots law may take account of changes in technology and create rules to accept less formal electronic testamentary writings. Who knows how such writing might be interpreted? It is worrying to think that musings in a notes application on a smartphone could potentially be taken to represent a Will. The only way to gain peace of mind that your estate is distributed as you desire and your loved ones are protected is to take proper advice and have a Will professionally drafted, ensuring your personal wishes are properly and tax efficiently implemented.