If a person dies without leaving a will, they are said to die intestate. Intestacy may occur in a number of circumstances and is not limited to situations in which a person fails to make a will. Intestacy may occur where:
- The Will is not valid because it was not signed and witnessed according to the law
- The Will has been poorly drafted
- The person did not have the mental capacity to make a Will
In the absence of a valid Will, the court may look to other documents that indicate the deceased’s intention. A Queensland court has just handed down a decision accepting a deceased man’s unsent text message as his official will.
The 55-year-old man took his own life in October 2016, after drafting a text message to his brother, stating he should “keep all that I have”. The text message revealed that the deceased man was unhappy with his wife.
The unsent message, that a friend found in the draft’s folder of the man’s mobile phone, also gave instructions on how to access his bank account details.
The man’s wife argued in court that the text message was not final because it was never sent.
But Justice Susan Brown found that the wording of the text and the use of the word “my will” indicated the intention of the deceased. (ABC News)
This case demonstrates the discretion of the court to consider other documents evidencing the intention of the deceased. Under section 21 of the Interpretation Act 1987 (NSW) a “document” may include anything on which there is writing, anything on which there are marks, figures or symbols, and anything from which sounds and images can be reproduced.
However, this does not mean there is no need to make a formal will. It can cause the surviving family a lot of stress if they are forced to rely upon ambiguous documents or messages.