I was surfing the internet the other day when I came across an interesting article involving wills. I always keep an eye out when I'm online for anything related to estate planning and settlement. Sure, I read a lot of things that are published by various legal authorities but the stuff that makes mainstream is where the real fun is.

The caption on the article was "Unsent Text Message Accepted as Valid Will." I thought cool and quickly followed up with, "Wait, what?"

It seems that a gentleman in Queensland, Australia, wrote out a text distributing various property to family members and suggested what to do with his remains. He ended the text with the words "my will" but never sent it. A few hours after preparing the text, he tragically took his own life. The text was ultimately discovered in the draft file on his phone. The text disinherited his wife and son and left everything to his brother and nephew, which resulted in the court involvement.

My initial reaction was that this can't be true, so I searched a little more. I never reviewed the actual case: I was interested but that not that interested. However, other articles detailed the court's reasoning. It appears the court decided that the text was similar to a holographic will and that it included all the magic words that make wills valid: testamentary intent, acknowledgment of family and actually used the word will.

Holographic wills are wills in the creator's own handwriting that aren't generally executed correctly and usually without witnesses' signatures. Some states recognize holographic wills despite the fact that they aren't executed correctly because they are in the creator's own handwriting. Indiana isn't one of those states.

It seems to me that this gentleman's will is closer to a nuncupative will, which is an oral will given immediately before one's death and in front of witnesses. But again, the text will was never sent so I'm not sure that anyone can claim it was witnessed.   

This one has me scratching my head a little bit. It would seem to me that accepting a text message as a valid will could result in a lot of fraud. How does anyone really know who typed the text and who knows if the person was of sound mind?

I'm sure the justices sitting on the Brisbane Supreme Court are learned jurists, and I'm not pretending to understand Australian law, but yikes. There is an old legal saying, "Hard cases make bad law." This seems to be one of those hard cases.

I know that technology is changing daily. You buy a new computer and it's already outdated by the time you reach your car. My kids have never known a world without the internet and cell phones, and they will experience things that I can't begin to imagine. But let's slow down a bit and let things catch up before we go applying new technology to old legal concepts.

Despite what this case may suggest, make your will properly and execute it correctly with witnesses and all of the formalities. Don't rely on the law adapting to technology. It will get there but not today. The moral of the story is if you want to make out a will, call your attorney; not the "Can you hear me now" guy.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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