A Will Is Only As Good As Its Ruling

In a recent decision of the Australian court, Re Nichol, an unsent text message was accepted as a valid will of a deceased person.

The draft text message detailed the man’s intentions to leave his property to his brother and nephew, rather than his wife and children. The message ended with the words “my will”, followed by a smiley face emoji.

This is not the first time that Australia has accepted an unusual will. In 2013, the court accepted a DVD marked “my will” as a valid document.

While the Australian courts are trending towards accepting unusual forms of wills, the BC courts rely on the Wills Estates and Succession Act (WESA), which continues to adhere to traditional documentation.

In a recent decision of the BC Court of Appeal, Hadley Estate (Re), Ms. Hadley’s handwritten entry in a journal detailing intentions for property was not accepted as her final will.

The deceased, Ms. Hadley, had written an entry in her personal journal following a health scare. The second page of the entry was headlined, “This is my last will,” and detailed Ms. Hadley’s intentions following her death.

Ms. Hadley had a previous will, created in 2008, which left her estate to family. The more recent journal entry had changed the beneficiaries of her estate to two of her friends.

The two friends applied to the court pursuant to section 58 of WESA, seeking a declaration that the journal entry represented Ms. Hadley’s true intentions, and should be admitted as her final will.

Section 58 provides the court with “curative powers” to recognize a testamentary document which may not meet the formal requirements as required under the Act. It is up to the court to determine whether a non-compliant document represents the true intentions of the deceased person.

In coming to its decision, the court considered the events leading up to and following the entry in the journal, and whether it supported the journal as a valid will representing Ms. Hadley’s intentions.

Evidence that supported the journaled will included that Ms. Hadley had received a letter reminding her to consider the accuracy of her prior will, handwritten the journal entry after a significant health episode and headed it “This is my last Will”, signed and initialed in various places, made three bequests, and left it in the safekeeping of friends.

Factors against finding the journal entry as a will included that Ms. Hadley did not expressly revoke her prior will, did not tell anyone about the journal entry, and had made a subsequent note to herself to “make a new will as soon as I can”. Ms. Hadley spoke with her lawyer following the journal entry and informed him that she wanted to make changes to her will but did not state that she had already made a new will.

Finding that the journal entry represented Ms. Hadley’s notes to herself, the judge concluded that the journal entry was not a deliberate and final expression of her testamentary intentions. Therefore, it was not “cured” of its deficiencies under section 58, and was ruled as not a valid will.