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Old technology, but new age of wills?

With the world talking about the movement into a paperless digital age, cryptocurrency and blockchain technology, the technologizing of wills is still up for debate.

As written earlier, the proposal that text messages be accepted as a medium for wills was rejected by the United Kingdom’s Law Commission.

On the contrary, the Supreme Court of Queensland has in October 2017 accepted an unsent, draft text message on a dead man’s mobile phone as an official will. While we emphasise that the text message was unsent and in draft form, the Court there made some useful comments as to the amount of evidence which they needed to be satisfied that the deceased drafted the text message as a will. This included, amongst other things, the wording of the text message, e.g. the use of the words “my will”. The deceased also made clear references to his house and superannuation, while specifying that his wife was to take her own things, all of which indicated that he was aware of the nature and extent of his estate.

While we cannot comment substantively on Australian law, we understand that the law in Queensland was changed in 2006 to allow less formal types of documents to be considered as a will. We also understand that in Australia there has generally been movement away from strict compliance to traditional will formalities.

Further to the foregoing, while there seems to be a divergence in views (i.e. between English and Australian law) as to whether wills by text can be accepted, given that there has yet to be any legislative change in Singapore similarly allowing less formal types of documents to be considered as wills, it is unlikely, in the event someone tries to apply for a grant of probate in Singapore using an ‘unsent, draft’ text message as a will, that that unsent draft text message will be recognized as a will.

That said, if you would like to draft a will, take note to ensure that the formal requirements are met. This includes, inter alia, signing the will in the presence of two witnesses (both of whom should not be beneficiaries under your will).

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Will the state take all my money if I pass away without a will?

In most situations, this is nothing more than a myth. If one dies without a will, your assets (including your money) will be distributed to your legal or biological next-of-kin surviving you under the Intestate Succession Act (the “Act”). Under the Act, the following persons may be entitled to share in the distribution, under the rules prescribed therein:

  • Spouse
  • Legal or biological child
  • Parent
  • Brother/sister (or if deceased, their children)
  • Grandparent
  • Uncle/aunt

Only rarely, in cases where there is no will and no distribution is possible as there is no next-of-kin as set out above, will the deceased person’s assets be distributed to the state.

Separately, we specify “legal or biological next-of-kin” because, under the Act, only biological or legally adopted children are entitled to claim against their natural parent’s estate. A “child” as defined under the Act does not include step-children, nor does it include persons who are not legally adopted.

In this regard, if you have step-children or children who you have long treated as your own (but did not legally adopt) and you wish your assets to pass to them on your death, we strongly advise that you create a will to provide as such. The law will not otherwise recognise their entitlement to your estate, no matter how the evidence may point to the presence of a paternal/maternal bond between you and them.