Your mobile phone is primarily used for keeping in touch, checking social media and sending daft pictures of yourself to your friends. Ideally it’s not to be used for leaving instructions as to what happens to your belongings when you die.
In a recent court case in Queensland, Australia, an unsent, draft text message on a deceased’s mobile phone was accepted as a valid will. The message was addressed to the deceased’s brother leaving “all that I have” to his brother and his nephew. The message was unsent and found in the drafts folder of the deceased’s mobile phone. He prepared the message shortly before he took his own life. The deceased’s widow argued that the message was not valid as it was never sent. However, the court ruled that as the message ended with the words “my will” this showed that the deceased had intended for it to act as such.
The (English) Law Commission is currently fielding a consultation on the legal rules applying to wills which may include video wills. While looking to modernise succession is of course a good thing (we have previously written on the topic of digital succession), the position in Scotland is clear: a draft text message will not be accepted as a valid will. There are some essential requirements before any writing can be regarded as a valid will:
Anyone who is legally and mentally capable and signs a will willingly has capacity to make a valid will. You must be old enough (at least 12 years old) and be of sound mind and not deemed to be mentally incapable of making decisions (such as choosing to make a will). You must be choosing to make the will willingly and there must be no undue influence from anyone else.
There must be an intention to bequeath all or part of your estate. This is usually expressed by preparing a will and using words such as ‘I leave the residue of my estate to X’.
Finally, the will must be subscribed and signed in your usual signature at the bottom of every page. This is taken to mean that you have made up your mind and the will follows your wishes. In order for the will to be self-proving, it should be witnessed by an independent person (i.e. not a family member) and preferably not a beneficiary of your estate.
A will must have all three of these requirements otherwise you do not have a valid will.