Informal Wills in the news again today, this time a draft text on a mobile phone that was never sent ending up in Court.
In 1987 the Wills Act (WA) was amended to allow things called ‘Informal Wills’. What actually is an Informal Will however has required many other amendments to the Wills Act over the last decades.
An Informal Will is any document (and now includes video, or sound recording, or plan, diagram or picture, or photograph or indeed anything with marks on it) that the deceased person intended to be their last Will but which does not meet the usual other formal requirements as set out in the Wills Act.
The usual formal requirements of a Will include that it is in writing, signed on each page and witnessed by two other people and disposes properly of a person’s property – amongst other things.
And here is the difficulty with Informal Wills – proving that the person intended that thing (video or text message, or notes entered on an iPhone or hastily scrawled note on a napkin) to actually be their last Will.
Our law has acknowledged the need for Informal Wills as far back as 1941. As our young lions were sailing overseas to fight in the Second World War, our Wills Act was amended to allow any document the soldiers, sailors or airmen wrote in the heat of battle to be their last Will, even though it did not meet the formalities.
So, where a person writes a lazy note in a notebook or taps something out on their mobile, it’s not an easy thing to show that it was intended to be their last Will.
But where, as in the sad case reported here, a person writes their last wishes before they took their own life in a medium nearest or most convenient to them such as on their iPhone – including how to access their bank accounts and where they want their ashes scattered – even if it is an unsent text message – it is much more likely to be seen as their last Will.
Even so, the legal costs of proving the text message was a last Will would be huge – orders of magnitude higher than the costs of the most expensive Will.
This also speaks to the increasing use of technology in how we go about our daily lives; pen and paper (which the Act requires a Will to be) are becoming old fashioned. The rise and rise of the paperless office has put an end to many notes and letters, and with it, an increase of email and electronic forms of writing.
We expect we shall see many more Informal Wills cases come before our Courts around digital media, and for anyone without a proper Will, the question of what actually is a Will shall become more and more complex, uncertain and risky.