Is an unsent text a valid will?

Last year in Australia a man committed suicide and was found with his phone near his body.  On the phone was a text leaving all of his worldly possessions to other relatives, not his immediate family:

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.

The Australian supreme court ruled that the message was a valid will, and the instructions in the text message were carried out.  The Australian law on what makes a will valid is similar to California.  A will must be signed and dated by the maker of the will and witnessed by two witnesses, but the court can overlook those requirements if it is satisfied that a document is meant to be the will but doesn’t meet the criteria.

In that case, there was enough outside evidence to satisfy the court that the will was valid.

Given the general attitude of California cases, California courts are unlikely to find an unsent text to be a valid will.  If nobody witnesses the will, it must be handwritten, signed, and the court must be able to figure out the date of the will.

The court can (but does not usually) ignore these requirements if the writer doesn’t meet them entirely, but even then the will must be signed.  California allows for digital signatures, but an unsent text message is not a digital signature.  Most of the relevant code sections are here.

Either way, it would be an expensive lawsuit in California with claims from both the widow and the other family members.  Even if the man had followed the California instructions for a holographic will,  it would not be cut and dry, and his assets would be subject to probate.

This whole situation could all be avoided by a few hours of preplanning.  Even when using a form will, consulting an attorney will ensure that everything is correctly filled out.  Don’t leave the future of your loved ones to chance.

Leave a Reply

Your email address will not be published.