The Age of Technology - Is a Will Worth the Effort?

It is easy to procrastinate making a will and with recent Supreme Court decisions holding that unsent text messages [1] and video recordings [2] can be a valid will, is it really worth the effort and expense?

For Jay Schwer it was as easy as making a video recording before riding his motorcycle. Jay sat in front of the camera and began, “My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I’ll just say it”.[3] For Mark Nichol an unsent text message ending with “My will” was sufficient. If it’s that easy, why should you bother visiting a lawyer to make a will?

The law allows the Court in Queensland to dispense with the formal execution requirements for a will provided the applicant can establish there is a document, that the document purports to embody the testator’s intention and that the deceased intended the document to operate as their will. However, these applications to the Court can cost upwards of $15,000.00, which is considerably more expensive than making a will. The process is expensive, time consuming and stressful for your loved ones.

There is also a significant risk that the Court will decide the informal will does not meet these requirements. If this is the case, you are held to have died intestate. The intestacy rules will then govern the distribution of your estate.

Under the intestacy rules, the first $150,000.00 of your estate will go to your spouse, along with your personal chattels. If you have children, they will share the residue of your estate with your spouse (in varying shares depending on how many children you have). This does not include your step children. If you do not have a spouse the rules of intestacy dictate the order of entitlement as follows:

• Children
• Parents
• Siblings
• Grandparents
• Aunts and uncles

If you do not have any living family from the list, the Crown will take the entire estate.

A valid will is the best way to ensure there is no uncertainty and that your estate is distributed in accordance with your wishes. A will also importantly appoints an executor, who has the authority to deal with your assets and liabilities and distribute your estate to your beneficiaries. A will ensures your family or friends know your wishes and reduces the stress and expense in administering your estate. If you do not have a will or you are looking to update your will, our experienced team of succession lawyers can assist.

[1] Re Nichol; Nichol v Nichol & Anor [2017] QSC 22.

[2] Radford v White [2018] QSC 306.

[3] Radford v White [2018] QSC 306, 5.