When musing about what will happen to your stuff if you were to die, naturally or through misadventure, would you mull it over in your head and then maybe make some notes on your phone, tablet or computer … or even draft an email, text or Messenger message?
If you have done this or would consider doing it, then you should be aware that your musings – not intended for public viewing – could be accessed after your death and be considered as part, or all, of your will.
Michelle Gold, wills and estates specialist at Meyer Vandenberg Lawyers, said, “Many people don’t have a legal will and could be at risk of others looking through their notes on electronic devices after they are gone”.
This has, in fact, happened recently in Nichol v Nichol  QSC 220.
In this case, Mark Nichol committed suicide. Before he died, he wrote a text message to his brother but did not send it. A search for a will preceding his death could not be found.
His wife applied for Letters of Administration claiming that Mark died intestate (without leaving a will), but the deceased’s brother and nephew sought to have the unsent text message considered his will.
The text read:
“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 ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the back Cash card pin 3636.
In this case, the Court found the unsent text message to be a valid will.
In the ACT, the most recent matter to come before the Supreme Court regarding informal wills was Re Holtkamp  which was decided on 16 November 2017.
The deceased in this case had a handwritten note which the plaintiff contended was the last will of the deceased as the note would have eventually been converted into a typed written will, however, the deceased died before signing.
The handwritten note had not been witnessed by two people, however, the Court was satisfied that Section 11A of the wills Act 1968 (ACT) had been satisfied given extensive communication and discussion regarding the contents of the handwritten note.
“In jurisdictions outside of the ACT, documents such as DVD recordings, iPhone notes, and computer files have been held to be valid informal wills,” Michelle outlined.
- Be careful about unsent notes, emails, messages, posts and thoughts recorded on your phone etc. in relation to your will;
- Don’t publish anything in relation to your will, in the heat of the moment when you are either angry or being silly, that may be considered later to become part of your will;
- If you are going to brainstorm your will, then make sure you label it clearly as a draft or delete it completely and not use words such as ‘my will’;
- Be careful with your passwords and don’t give them to anyone who could possibly want to change your will;
- In the ACT, a will must comply with the formal requirements set out in the Wills Act 1968 (ACT) to be valid, otherwise an “informal will” application must be made and the Court will decide if the document is your last will.
“Most importantly, you should have a valid will. The best way to do this is to seek advice from a lawyer,” Michelle concluded.
Now that many of us live our lives both in the physical and the virtual worlds, it pays to be aware that the things that we save and share from our devices may have serious consequences once we are gone.
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