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Australia The Almighty Buck The Courts Technology Your Rights Online

Unsent Text On Mobile Counts As a Will, Australian Court Finds (abc.net.au) 144

A court in Australia has accepted an unsent, draft text message on a dead man's mobile phone as an official will. The 55-year-old man had composed a text message addressed to his brother, in which he gave "all that I have" to his brother and nephew. From a report: The Supreme Court in Brisbane heard the 55-year-old took his own life in October 2016, after composing a text addressed to his brother, which indicated his brother and nephew should "keep all that I have," because he was unhappy with this wife. A friend found the text message in the drafts folder of the man's mobile phone, which was found near his body. The unsent message detailed how to access the man's bank account details and where he wanted his ashes to be buried.
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Unsent Text On Mobile Counts As a Will, Australian Court Finds

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  • by Strider- ( 39683 ) on Wednesday October 11, 2017 @11:14AM (#55350163)

    Depends on the legal jurisdiction, but in 1948, a Saskatchewan farmer became trapped under his tractor, and scratched a short will into the bumper of his tractor. This survived court challenges, and that bumper is now on display of the library at the law courts. More info can be found here. [globalnews.ca]

    • That is more clear. An unsent draft is just that -- an unapproved, unreleased draft.

      You'd have to magically know he intended to send it but died in the process, or had told someone "you can find it in the drafts folder".

      Until then, it can't be construed as validated precisely because of its context, regardless of its qualifying content.

      • This is called a holographic will [wikipedia.org]. The rules vary by jurisdiction, but if you can show intent, then it may be acceptable, as this guys brother was able to show in court. I frequently use the draft folder in my email as a scratch pad, for notes to myself later. In my mind, this is no different than leaving a physical suicide note scrawled on a napkin.

      • So, you find my will on my desk, written by hand on paper.
        I did not sent it to my lawyer or a notary. Is it valid?

        As I'm not required to give it to a lawyer or notary, of course it is valid.

        The latest 'draft' of your will is your will, regardless if you leave it on your desk, in the outbox or drafts box of your mail program, or as in this case as an unsent text message.

        And btw: what is your self proclaimed authority that you challenge a courts decision?

        I hope your will will be found without need for a court

      • by AmiMoJo ( 196126 )

        This is a civil matter so the burden of proof is only the balance of probability, not beyond a reasonable doubt.

        So given that he wrote the draft, probably supported by other evidence of his relationship with the individuals involved, is it more likely that he intended that to be his will or more likely that he didn't send it because he changed his mind?

        Not sending it could have been because he intended to amend it, not because he didn't want them to inherit his stuff.

        I think you would have a hard time convi

    • "I leave all my money to KLHDSFHSKJD" That one will take 15-20 years of court time to resolve.
      • by Anonymous Coward

        In that timespan you could produce a human being who answers to that name.

  • Seems Legit (Score:2, Insightful)

    by DatbeDank ( 4580343 )

    He found an unsent text message in the drafts folder of the phone of his relative he found dead before anyone else. Totally doesn't seem self serving at all! /sarcasm

    Guys, do all yourselves a favor to avoid this familial post life bickering: get a living will that outlines your last will and testament as well as what to do if you become a vegetable!

    • Re: (Score:2, Informative)

      by Anonymous Coward

      He found an unsent text message in the drafts folder of the phone of his relative he found dead before anyone else. Totally doesn't seem self serving at all! /sarcasm

      I thought the same thing at first. But then I RTFS.

      The unsent message detailed how to access the man's bank account details and where he wanted his ashes to be buried.

      I guess it's possible that the brother already knew how to access the dead man's bank account, but it does at least make this not as simple as you purport it to be.

    • by nsuccorso ( 41169 ) on Wednesday October 11, 2017 @11:22AM (#55350239)
      For my part, I intend to avoid this familial post-life bickering by being dead.
    • by AvitarX ( 172628 )

      Also, even if legit, wouldn't the fact that he killed himself immediately after mean he wasn't of sound mind?

      • What about the fact that it was unsent? It'd be one thing if it was stuck in his outbox after it failed to send, but the fact that he had not gone through the act of even trying to send it would suggest that he thought better of it and decided against going through with it.

        • You could equally argue that if he'd really had second thoughts he'd have deleted it.

          This, I suspect, is why most jurisdictions require witnesses and/or going through a neutral party.

          • If he wasn't having second thoughts, he could have sent it. It's not like his suicide caught him by surprise before he could finish.

            • He could have forgot. He could have thought he sent it, but hit the wrong button.

              I don't know if you're an aspire or a troll, but it's not as clear cut as you seem to think.

          • The problem with that line of thinking is that the actions aren't inherently neutral; they each carry meaning in our culture. If you want something to be read by others, you send it. If you're unsure you want it to be read, you don't send it. If you're sure you don't want it to be read, you delete it.

            As you pointed out, it's possible that he bucked those conventions, but the onus is on the people saying he bucked convention to prove he actually did so. In the absence of evidence to the contrary, we should a

    • Guys, do all yourselves a favor to avoid this familial post life bickering: get a living will that outlines your last will and testament as well as what to do if you become a vegetable!

      Wait... so... what should I include in my living will to ensure there is familial post life bickering? ;)

      • Be vague.. and/or include a Death Match clause to decide who gets what.
      • Vagueness or giving most of the inheritance to some family member that you've previously disavowed or have little connection and contact with.

      • by Shotgun ( 30919 )

        Lots of joint ownership.

        I leave my bath brush to my brother and my aunt. May they live in peace.

      • My great-grandmother had 3 children. She told each of them, separately : "You're my favourite child, you'll get everything", but didn't write down any will.
        She died 16 years ago, her children are still arguing today.

    • Kind of amazing since in Texas, when my mom died, the law required either a holographic (handwritten) will signed by her or a will in some other form with 2 witnesses plus her signature. She had many wills, all essentially identical but only 1 was legal.

  • It doesn't cost much to have a will prepared by a lawyer. Sign it, have it witnessed, and make it known to prospective heirs; it saves everyone a lot of bother. Just do it.
    • by AvitarX ( 172628 )

      And if you have enough for it to really matter (doesn't even need to be much, a reasonable life insurance policy for example), get it all in a revocable trust, it will further streamline the disbursement.

    • Doesn't that just give certain people more reason to want you dead?

      I stopped my life insurance when my loving wife realized I was worth more dead than alive.

    • That is a pointless excercise.
      A will is a will is a will ...

      Depending on how much you have to give away as heritage it is absurdly expensive anyway.

      Why should I hire a lawyer to write my will, when I can do it myself and just deposit it in my bank vault?

      • by tomhath ( 637240 )
        If you're comfortable with doing it yourself, sure. I'd at least have it notarized. As I said in my original post though, a lawyer won't charge much for a routine service like this.
        • A lawyer in Germany will charge accordingly to the "worth" of the will.
          So if you have to give away $10,000 it might be only a $400 bill, if it is $1,000,000 it likely is in the $5000 range.
          The prices are btw. fixed and settled by the "guild", sorry, I lack the proper english term.

          Notarization is also pretty pointless. As I said: a will is a will is a will.
          Notarization only prevents that a relative/possible heir can claim the will is wrong.
          And then again: if you have a will at the Notary, and before you die,

      • by fedos ( 150319 )

        Why should I hire a lawyer to write my will, when I can do it myself and just deposit it in my bank vault?

        So your family doesn't have to hire a lawyer to defend your will after you're dead.

      • by Shotgun ( 30919 )

        Or, post it on Facebook. Then you'll see how many friends you really have.

        • Ha :D
          That is funny.

          Unfortunately I only use facebook for sport events. None of my friends uses facebook "for friends stuff". Hm, thinking about it, some of my friends in Asia do.

  • All you have to do is create a will and text whoever is dead to steal all the assets wahoo!

  • Unsent (Score:5, Insightful)

    by cyberchondriac ( 456626 ) on Wednesday October 11, 2017 @11:28AM (#55350287) Journal

    My problem with this is that the text was unsent and still a draft, yet he took his own life at a time of his own choosing.
    So, it's likely he wasn't really sure he wanted to do this, but was only pondering it... unless he didn't have signal where he was. Some people right mad letters just to blow off steam but never send them. The whole point of text messages is to send a communication, not create documents on your device. There are default apps for that too.
    Had the text been sent, that'd be different. Was there cellular reception at this location?

    • I'm more puzzled by the fact that the article says that a will must be witnessed by two people who aren't beneficiaries, yet this one doesn't seem to be.

      • The article says this: "Queensland Law Society president and succession law specialist Christine Smyth said the law was changed in 2006 to allow for less formal types of documents to be accepted as wills."
        • The article says this: "Queensland Law Society president and succession law specialist Christine Smyth said the law was changed in 2006 to allow for less formal types of documents to be accepted as wills."

          Earlier in the article [abc.net.au] it states: "The Queensland Government's website says for a will to be valid, it must be in writing and "signed by you in front of two witnesses, both of whom must be over 18 years old, cannot be visually impaired and should not be included as beneficiaries in the will."

          I would presume that the website would include any changes to the law from eleven years ago.

    • Re: (Score:3, Interesting)

      by es330td ( 964170 )
      The unsent element of this is very troubling. IANAL, but in my Business Law class much time was spent on the significance of offers and counteroffers actually being sent to be admissible and enforceable. An unsent text/email is the snail mail equivalent of a letter printed but not mailed. The act of mailing/sending puts a "finished" stamp on the communication that makes it one's official communication. It can be revised after the fact but releasing it make it official in a very special way. If this could st
      • in my Business Law class much time was spent on the significance of offers and counteroffers actually being sent to be admissible and enforceable.

        This was not an offer or counteroffer. Those need to be communicated to be enforceable because there is an expectation on the part of the recipient created by receiving that offer. If it is not sent, there is no expectation, and thus no breach of implied contract.

        The act of mailing/sending puts a "finished" stamp on the communication that makes it one's official communication.

        A will is not an 'official communication'. It is valid when it is written, even if the beneficiaries are never told about it before the death. Where you write it is irrelevant. I could write it on the back of an envelope and store it away in a safe

        • I'd say the take-away is don't go to DeVry, then you won't try and apply contract law to things that aren't contracts like es330td did.

    • The moment someone receives a text that you're about to take your life, all sorts of measures will (probably) be taken. They will try to contact you to talk out of it, the authorities might start locating your phone, that sort of stuff. Suddenly you're in a hurry, and most suicide methods are not 100% effective either. I guess he could have used some kind of delayed SMS app or something, but I think the guy just wanted to carry out his suicide plan in peace.
    • Hackers breaking into celebrities' phones not to steal nudie pics, but to insert unsent wills in the drafts section leaving everything to themselves as "the nice guy I met at Starbucks" in the event of the celebrity's random death.
    • by AmiMoJo ( 196126 )

      Given that he took his own life, while we can't be sure about his mental state it's likely that he was under considerable stress and suffering from mental health issues. Thus failure to remember to send the draft is explainable. In fact he may have hesitated to do so, not realizing the legal ramifications, for fear that the message would cause the recipient to call the emergency services.

    • by houghi ( 78078 )

      How is that different to an unsent letter? He crated it, it is valid. If you write a will, there is no obligation to send it to anybody. Most people in Belgium will go through a notary, but tere is no law that demands it. You could even go to a notary, go outside and write a new one that you hide behind a painting.

      The last version of what you wrote is the valid one. Not the last one that you gave to somebody else. You could write it on a banana peel and it would be valid.

      The hard part here might have been t

      • It's not that different, but that's the problem. Wills are legal documents. Legally, the Will was supposed to have been signed by two witnesses for verification in that jurisdiction. I believe that was alluded to in the summary. In some jurisdictions, a notary is even required, or preferred, though that's not as common.
        I'm not sure how spontaneous most suicides are, but people usually ponder it for some time; he could have had time to type up a proper letter, I would think, and have it on his person. Or

  • by PopeRatzo ( 965947 ) on Wednesday October 11, 2017 @11:32AM (#55350317) Journal

    I just hope an unsent text on a mobile never counts as a marriage proposal.

  • I can't speak for other countries, but in most of the USA the determining factor would be "was it really a final document, or just a draft/in-progress document?" and "was it altered/faked?"

    With a paper will, it's fairly easy to test: was it signed, and was it altered after signing?

    With a text or email that is sent it's a bit harder but sometimes you can still prove it is "final" if you show that the purported sender is the actual sender, that it hasn't been altered, and that the context indicates it was a

    • Also relevant is who the text message was drafted to be sent to.

      At least on my phone, you can't 'draft' a text message without starting out with the message being directed at a specific number.

      Why is this detail missing from the summary?

  • Before my father died from terminal cancer, he left me a handful of pre-signed checks. That made it easy to get money out of his checking account to pay for his funeral expenses. Unfortunately, he left no will. Since I was listed as the beneficiary on the bank accounts, my older brother took all the tools and the truck. After I settled the estate, I've inherited nothing from my father.
    • All your father had at the end was a truck and some tools?

    • That is rather a good way to go. Having enough money to pay until the end.

      In reality one should never budget their life on getting an inheritance. Even if you parents are in their 70's they may have decades left and if you are going to budget for this, then chances are you will waste most of your life awaiting a payday that may not get there.

  • by JoeyRox ( 2711699 ) on Wednesday October 11, 2017 @11:42AM (#55350381)
    The purpose of having a signed and witnessed will is proof that it was authored or approved by the individual. Even with an unwitnessed handwritten will you can authenticate the author from handwriting analysis. How can this be accomplished for a document typed on a Smartphone, when anyone could have picked the phone up and typed it in post hoc?
    • If the device was password protected you at least narrow down the potential authors to those that new the password. Still not perfect, but maybe 'good enough' to give the judge something to go on.
    • by oneneo ( 987547 )
      "The unsent message detailed how to access the man's bank account details..." Presumably, no one else knew how to do that.
    • by houghi ( 78078 )

      The purpose of having a signed and witnessed will is proof that it was authored or approved by the individual.

      That does not mean that is a must. It wil make things a LOT easier, but that is about it from a legal point of view.

      A will is nothing more than a type of contract.
      First there is the general law that will determine what is allowed and what not. e.g. in some countries it is not possible to exclude the kids. The will from my parents had that everything would go the the longst living person and myself a

  • I will not leave a will, because I laugh inside just at the thought of my family bickering about who should inherit my shit.

    • by es330td ( 964170 )
      Without a will, most states have set percentages that go to each blood relative. No bickering at all; spouse gets X%, kids get Y%, etc.
      • You'd hope that happens. In most states in deaths without a will, the state decides and what the state decides can't be contested. So if they decide to give everything to your nearest relative instead splitting it amongst your friends and family, there's little anyone can do about it.
      • I don't live in the USA, but noted.

  • by Anonymous Coward

    Any man who would kill himself because his wife left him, is obviously mentally incompetent. That is a time to celebrate.

  • To my executor, Lionel Hutz, I leave $50,000.

  • How do we know that the brother or nephew wasn't the one that drafted the text? I mean, they do have something to gain from this.

  • So his wife gets nothing because he was suicidal? I'm moving to Australia. My wife will have to treat me better.

  • The fact that Wills don't get recorded and sent out to the involved parties automatically means that we haven't progressed beyond the 1700s. Too often there are still cases of "where is the will" or "which will is the proper will", as if we are in an old murder mystery. This is a case where bringing in a bit of modern technology, like recording documents, would save a lot of time and trouble with the added benefit of giving lawyers the shaft. A simple change could induce it, just give a tax penalty if it
    • The fact that Wills don't get recorded and sent out to the involved parties automatically means that we haven't progressed beyond the 1700s.

      No, that means that we still value, even just a bit, the privacy and the intentions of the person who writes the will, instead of micromanaging the process.

      If the author of a will wishes to tell everyone in the will about it, he can already do that. If he wishes to avoid hurt feelings and arguments amongst the beneficiaries by not telling them ahead of time, he can do that, too.

      Who someone tells about being in a will is a right that belongs to the individual, not the state. The state has no overriding co

  • It could be that he was just CONSIDERING this, but since he didn't even send the message... did he COMMIT that this is what he wants to do?

    Wills usually require some kind of signature and witness, that they were actually made by the person, also, that they are sane or of sound mind at the time that they prepare the document, and it's their actual intention --- not just some thing they rambled out in a fit of rage.

  • I read it as "usenet text". Anyone else?

    Shit, broke both rules there.

  • by sd4f ( 1891894 ) on Wednesday October 11, 2017 @06:48PM (#55353171)

    There are two things that come to mind which make me think it's not unreasonable.

    The first is, the guy's dead, his true intentions can't really be determined now, insofar as what was left behind, and are probably more inclined to just to share the estate, because ultimately the court doesn't care.

    The second is a lot of suicidal people don't send out their messages, they do leave them on their phone, so that no one comes and tries to rescue them. I would guess this situation is no different, after all, I'm sure the brother would have tried to intervene with a message like what was saved on the phone.

    Looking at those things together, and given the circumstances of the breakdown in the relationship, yea, I think the courts determined an appropriate outcome.

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