Brisbane Supreme Court, Australia recently decided that an unsent text message detailing how a man wished for his estate to be divided was a valid Will. Could this be a turning point leading to digital Wills being accepted in Scotland?
In the Australian case, the individual composed a text message addressed to his brother, but the message was never sent. The message contained information regarding the individual’s bank accounts and wished for “all that I have” to go to his brother and his nephew, followed by the words “my Will”. Typically, for a Will to be valid in Queensland, the Will must be written and signed by two witnesses. Nevertheless, the text message was held to sufficiently show the deceased’s intention for it to be used as his Will.
This decision could revolutionise the Will drafting rules and procedures across the world. However, this method of drafting is clearly open for abuse.
A new digital age in will making
John Thom, a Partner in our Perth office confirms, “The English Law Commission has branded the current regulatory regime south of the border as “outdated” and recommends that it is reformed to reflect the changes in modern society. They have pointed out that nowadays it is far easier and more convenient for people to use a smartphone or tablet, rather than pen and paper.”
He added, “However, it should be borne in mind that there is the question of whether someone making a digital Will could have been subjected to any undue influence or had sufficient capacity to make a Will, digital or not.”
In Scotland, it seems unlikely that digital Wills will be legally acceptable anytime soon as currently all Wills must comply with the Requirements of Writing (Scotland) Act 1995. A Will must be signed on every page in the presence of an independent witness. Having the Will signed in the presence of a solicitor is an additional safeguard as errors can be avoided, the capacity of the individual can be assessed and the solicitor can ensure that there is no undue influence.
It is likely that, for the time being, the law in Scotland will remain unchanged. John added, “Until any changes are enacted, it is crucially important to have a validly executed Will to ensure that your estate is distributed according to your wishes.”