It 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 bank Cash card pin 3636 MRN190162Q 10/10/2016 My will.”
Following a dispute between the man’s widow and his brother and nephew, the Supreme Court of Queensland decided the message was a valid will.
The case represents a growing body of legal decisions reflecting how the digital age is challenging the courts.
CHANGING DEFINITION OF THE WORD ‘DOCUMENT’
The courts have had to consider whether DVDs and digital videos, iPhone notes, Microsoft Word documents, encrypted computer files and other digital artefacts count at valid wills or amendments.
Except in very limited exceptional circumstances, a will is a document. To be a valid formal will, there are certain requirements: it must be in writing, on paper, signed by the testator, witnessed by other people, and formally executed. Specific formal language is encouraged.
In law, documents – more than witnesses or physical objects – have become the most important form of evidence.
But in the digital age, the distinction between a document, a witness and real evidence is becoming more difficult to perceive, and pointless to sustain.
What we understand as a “document” has expanded to include a potentially limitless range of digital forms and devices.
Challenges abound. Digital documents are long, ubiquitous, intangible, difficult to authenticate, easy to duplicate and modify. They sometimes bring more questions than answers.
THE CASE OF THE UNSENT SMS
The Supreme Court of Queensland had no difficulty in finding that the unsent text message was a document. However, it was not a formal will. Informal wills can still be valid in some circumstances. The court noted that the unsent message was identified as a will, dated, contained the deceased’s initials and date of birth (“MRN190162”).
It identified most of his assets, included clear wishes about their distribution, provided a pin code and gave instructions about his ashes.
The court also considered his state of mind at the time of his death, determining he had sufficient capacity to make a will. It considered the fact the man didn’t send the text message: did it mean that his will was still in draft form and did not reflect his final wishes?
The court accepted evidence that he did not send the message so that his family would not interrupt his suicide. Despite lacking nearly all of the formalities of a will, it was found to be his valid last will and testament.
THE CASE OF THE TRACTOR FENDER WILL
Courts have also had to consider whether an eggshell, a tractor fender, a petticoat hem, graffiti on a wall and a poem might be valid wills.
In 1948, Cecil George Harris died following an accident on his Saskatchewan wheat farm. He had been trapped underneath his tractor for 12 hours in torrential rain. His wife and neighbours eventually found him during a lightning storm. Despite their best efforts, he died of his injuries.
Two of his curious neighbours went to examine Harris’ stricken tractor and found a message he’d scratched into the paint on the fender.
The message read: “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.”
The neighbours removed the fender after his funeral and conveyed it to a local lawyer. It was eventually held to be Harris’ last will and testament. Because this case is now a quirky landmark of Saskatchewan succession law, the fender and the knife Harris used to carve his message are now on display in the library of the University of Saskatchewan law school.
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This article originally appeared on The Conversation and was reproduced with permission