Facebook Message Wills

In order for a will to be a legally binding document, it must follow certain statutory rules. A valid will is a written document that is signed by a testator in the presence of two witnesses, neither of whom are beneficiaries under the will. An informal will, on the other hand, is a document that does not conform to these rules, but does express the testamentary intention of a person who is now deceased. This article looks at whether a Facebook message can constitute a valid informal will.

Can Facebook Message Wills Be Valid?

Facebook is the biggest social network in the world, with almost three billion monthly users. People use Facebook Messenger to connect and communicate via messages, videos and photos. It is almost inevitable that at some point, someone will attempt to probate a Facebook message as a testamentary document. A fundamental obstacle to success in such a case is that messages and content on social media are seen as trivial and superficial. As such, any testamentary instruction in such a medium will be viewed with misgiving. The likelihood of a court in Australia validating Facebook message wills as legally binding informal wills depends on several important factors.

What Makes A Will Valid?

There is specific legislation in each state and territory of Australia that governs the legality of wills. A will typically needs to have three components to be considered formal and valid:

• It is a written document (either printed, handwritten or typed);
• The testator signed the will; and
• Two people (who are not beneficiaries) witnessed the signature.

Supreme Courts in Australia have the power to waive these requirements and validate an informal will under certain conditions. Each case is decided on its own merits, and the onus is on the applicant for probate to prove that the will expresses the last testamentary intentions of the deceased. The court must be convinced of certain elements, specifically:

• An informal will must be a document of some type. Legally, a document may be in writing, or in some other medium that shows translatable symbols, such as video or audio recordings, or computer files;
• It must clearly express (through content or circumstances) the testamentary wishes of the deceased in the event of their death; and
• It must be intended to function as a will.

The court will look at the conditions and terms contained in any document purporting to be a will and consider how, where, and when the document was created, whether the deceased mentioned the specific document or a general testamentary intention to other people, and whether there is another valid will.

Facebook message wills: videos

It is possible that a person could create a video will and share it via Facebook message. There have been several notable recent cases in Australia that examined the validity of video wills. In previous decades, a video “will” was treated as extrinsic material, used to better clarify a testator’s intention, rather than rising to the level of an actual will. It was up to the discretion of each judge to decide whether to admit the video as evidence of the deceased’s testamentary intention. However, if there was a contradiction between a video and written will, the written document was given priority. For example, in Cassie v Koumans (2007), the Supreme Court of NSW chose to ignore a testamentary instrument that was made later than a written will because it was in the form of a video.

More recent decisions have recognised other document types as valid, if informal, testamentary instruments. The courts have recognised the testamentary validity of a word document saved to a computer (Yazbek v Yazbek (2012)), notes saved on a smartphone (Re Yu (2013)), and an audio recording (Re Estate of Carrigan (dec’d)(2018)). Indeed, in Radford v White (2018), the Supreme Court of Queensland ruled that a video recording was a valid, informal will. The decision was based on the fact that the video was a document that purported to be the testamentary wishes of the deceased, and the deceased expressed an intention to complete the formalities of a written will at a later date.

Based on existing precedents, a Supreme Court may well decide to validate and probate Facebook message wills as valid informal wills. However, the process involved in validating the document will be time consuming and expensive. It is far better to prepare a will according to formal statutory regulations, as this will help the executor administer the estate in the most efficient possible manner. If someone leaves a Facebook message will in place of a formal will and it is ruled to be invalid, and there is no earlier valid will, then the deceased will be intestate.

The contested wills team at Armstrong Legal can provide answers to any further questions you may have about the validity of informal wills. Our specialists can help you apply for probate of an informal document, such as a Facebook message will. The team can also contest the provisions of an informal will so that you receive fair and adequate provision from a deceased estate. Please contact or call the team today on 1300 038 223.