A recent public consultation by the Law Commission on reforms to will making considered testamentary capacity, whether wills could be made electronically and powers for a court to recognise informal documents, perhaps even a text message, as a valid will.

The preliminary results of the consultation are being reviewed with a final report expected in mid-2019. The consultation takes place against a background of all our lives becoming increasingly digital.

The challenges of an online lifestyle

Very few of us now reach for a pen and paper any more. We simply log on to our email accounts and click send. Many of us manage all of our financial arrangements and daily living (for example banking and grocery shopping) online. The formalities required to write a valid will in England and Wales have not kept pace with the digital age and remain somewhat archaic, being set out in legislation from 1837.

Many see good reason for maintaining that high level of formality to protect the wishes of those making wills. However, there are cases where individuals have set out their clear intentions but fail to meet the required formalities, and their wishes cannot therefore be followed.

The Law Society consultation posed the question of whether it should it be possible for the courts to take such wishes into account, even when formalities for a valid will aren't met.

Text message taken as a valid will

An Australian case recently reached UK headlines which takes things further forward and potentially informs exactly the sort of issues the Law Society consultation seeks to address. There is no suggestion that the case has any immediate implications for the law in England and Wales, but it may very well indicate the shape of things to come.

A court in Queensland applied a statutory dispensing power allowing the wording of an unsent text message to be taken as a will despite not being executed with the usual formalities required for a will.

Details of the case

The case of Re Nichol is, as so often, a very sad story. The deceased had been estranged from his first wife and son. His second wife Patricia (Trish) had passed away. He had been married to his third wife, Julie, for a year before his death.

They had a difficult relationship and had split up a number of times, during which period the deceased had attempted to take his own life and sought professional help. Julie left him again and moved back in with her ex-husband.

Two days later the deceased took his own life and was found by Julie in the shed at his home, with his mobile phone beside him. The following day, when looking through the phone's contact list to see who should be notified of the death, an unsent text message was found and a screenshot taken:

"Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she's gone back to her ex AGAIN I'm beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will"

MRN was the deceased's initials and 190162 was his date of birth. Expert evidence confirmed that the message had not been sent and that it was created prior to the deceased's death. It was agreed that the text message was addressed to the deceased's brother (Dave Nichol), and evidence was given about conversations in which the deceased had indicated he wanted Dave to receive all of his assets.

It was also understood that the deceased's relationship with Julie was unsteady and that Julie had left the deceased on at least three occasions, the final time being immediately before the deceased's death. Julie did not believe the text message should be treated as a valid will and so applied to court for letters of administration under the intestacy rules. Dave Nichol and his son (Jack) contested Julie's application.

The formalities for executing a will in Queensland are similar to those which apply in England, but the law in Queensland contains a power to dispense with the formal execution requirements of a will where a judge is satisfied that the person 'intended the document.to form the person's will'.

An intention-based approach means that each case will be decided with the judge forming inferences from the evidence put forward.

The unsent text message was enough to show intent

In Nichol, the judge was satisfied that the deceased had intended the unsent message to be his will because:

  • It was created on or about the time that he was contemplating death and included wishes as to what should be done with his ashes;
  • The phone was with the deceased when he died;
  • The text dealt with the intended distribution of the deceased's assets, including making clear he did not want his wife to receive anything. The judge found the exclusion of the deceased's spouse reasonable given the shortness of the relationship and the fact that she had moved out;
  • The message was detailed in terms of how to find and access assets and including the words 'my will';
  • The fact that no evidence was brought of the deceased expressing any contrary intentions in relation to his estate.
  • The fact that the text message had not been sent was not considered to negate its importance. The judge inferred that the deceased would not have wanted to send the text as this would have warned his brother of the risk to his life.

What about the impact in England and Wales?

Much of the UK media commenting on the Nichol case concluded that treating an unsent text message as a valid will was a very surprising - possibly even 'stupid' - verdict. After careful consideration of the full judgment, it is possible to understand how the judge reached this conclusion.

Although the case was decided on its evidence, it is unlikely that it will set precedent in Australia for validation of other text message 'wills'.

The UK courts do not currently have the ability to dispense with the strict will formalities required by section 9 of the Wills Act 1837, although they have some discretion under the Inheritance Act to adjust dispositions made by a valid will or under the intestacy rules in limited circumstances.

The Court of Protection does have wide powers to take into account and assess evidence from informal documents to consider an individual's past and assumed present wishes and has on occasions found such informal expressions of wishes to be extremely helpful in determining how to proceed in the absence of formal binding documentation.

However, no matter how compelling the evidence from third parties or informal documentary sources about intent may be, at present in English law no such informal expression of wishes can control the disposition of an estate.

That, of course, may change if the courts are authorised to use a dispensing power following this consultation period, but it is clear that, as the debate unfolds (and even if the outcome is a new dispensing power law) individuals must continue to ensure that they seek professional advice to prepare, and regularly update their wills (including their physical and digital assets) to ensure that their wishes can be followed in the event of their death.

This will not only save the time and expense of legal action but will also avoid additional stress to family and friends at what is an already difficult time.