An unsent SMS, a message on a tractor, a poem: the courts say a valid will can take many forms

An unsent SMS, a message on a tractor, a poem: the courts say a valid will can take many forms

An unsent SMS, a message on a tractor, a poem: the courts say a valid will can take many forms

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When a man died by suicide in 2016, a friend found an unsent SMS on his phone:

Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will

Following a dispute between the man’s widow and his brother and nephew, the Supreme Court of Queensland decided the message was a valid will.

The case represents a growing body of legal decisions reflecting how the digital age is challenging the courts.

Read more: Five things to do before you die – because planning your eventual demise takes preparation

The changing definition of the word ‘document’

The courts have had to consider whether DVDs and digital videos , iPhone notes , Microsoft Word documents , encrypted computer files and other digital artefacts count at valid wills or amendments.

In the UK, the Law Commission is reviewing the law of wills to decide whether it should reflect the ubiquity of digital technologies.

Except in very limited exceptional circumstances, a will is a document. To be a valid formal will, there are certain requirements: it must be in writing, on paper, signed by the testator, witnessed by other people, and formally executed. Specific formal language is encouraged.

In law, documents – more than witnesses or physical objects – have become the most important form of evidence.

But in the digital age, the distinction between a document, a witness and real evidence is becoming more difficult to perceive, and pointless to sustain.

What we understand as a “document” has expanded to include a potentially limitless range of digital forms and devices.

Challenges abound. Digital documents are long, ubiquitous, intangible, difficult to authenticate, easy to duplicate and modify. They sometimes bring more questions than answers.

The case of the unsent SMS

The Supreme Court of Queensland had no difficulty in finding that the unsent text message was a document. However, it was not a formal will. Informal wills can still be valid in some circumstances. The court noted that the unsent message was identified as a will, dated, contained the deceased’s initials and date of birth (“MRN190162”).

It identified most of his assets, included clear wishes about their distribution, provided a pin code and gave instructions about his ashes.

The court also considered his state of mind at the time of his death, determining he had sufficient capacity to make a will. It considered the fact the man didn’t send the text message: did it mean that his will was still in draft form and did not reflect his final wishes?

The court accepted evidence that he did not send the message so that his family would not interrupt his suicide. Despite lacking nearly all of the formalities of a will, it was found to be his valid last will and testament.

A court might look for clues wherever possible – even in the deceased draft messages folder.

The case of the tractor fender will

Courts have had to consider whether an eggshell , a tractor fender, a petticoat hem graffiti on a wall , and a poem might be valid wills.

In 1948, Cecil George Harris died following an accident on his Saskatchewan wheat farm. He had been trapped underneath his tractor for 12 hours in torrential rain. His wife and neighbours eventually found him during a lightning storm. Despite their best efforts, he died of his injuries.

Two of his curious neighbours went to examine Harris’ stricken tractor and found that message he’d scratched into the paint on the fender:

In case I die in this mess I leave all to the wife. Cecil Geo. Harris

An extract from ‘In Case I Die In This Mess’, an episode of the podcast History Lab, from Impact Studios at the University of Technology, Sydney.

The neighbours removed the fender after his funeral and conveyed it to a local lawyer. It was eventually held to be Harris’ last will and testament. Because this case is now a quirky landmark of Saskatchewan succession law, the fender and the knife Harris used to carve his message are now on display in the library of the University of Saskatchewan law school.

What would the deceased have wanted?

Grief, generosity, love, regret, hate, spite, retribution, eccentricity: the full gamut of human emotions are revealed in a person’s will, and in the conduct of their beneficiaries and descendants after death.

Probate courts are required to walk into this emotional minefield, and ask: what would the deceased have wanted?

When a deceased person hasn’t left a will, or they’ve left one that’s deficient, the court looks for clues.

And, as history tells us, the courts have often acted with considerable sensitivity and flexibility in trying to do justice to the dead.

If this article has raised issues for you, or if you’re concerned about someone you know, call Lifeline on 13 11 14.

In Case I Die In This Mess was made by Impact Studios at the University of Technology, Sydney – a new audio production house combining academic research and audio storytelling. It is the first episode in a four part series titled ‘The Law’s Way of Knowing’, available for download through the award-winning UTS History Lab podcast.

Sorting out social media and online accounts

Sorting out social media and online accounts

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Most people have lots of social media and online accounts. The things that they contain (eg photos, statuses, messages) are sometimes called digital assets. It can be helpful to think about what you want to happen to these accounts and their contents after you’ve died. You can put plans in place to make things easier for your family members and friends to carry out your wishes.

If you’re not sure how to manage your online accounts, you might like to ask a family member or friend to help you.

On this page:

Decide what to do with each account

For each account that you use online, there will be different options for what you can do. To find out what these are, go to each account and look at the settings, options or terms of service.

You might be able to do different things, such as:

  • Memorialise a social media account, so that your timeline and pictures can be seen by friends, but no one can make changes to it.
  • Download a copy of your data (photos, videos and messages) and keep in a secure place.
  • Deactivate an account so that it isn’t publicly available. In some cases, the information stored with the company may still be accessible should soemone need to access it in the future.
  • Delete an account so that the account and its contents aren’t available to anyone publicly or privately. If you delete an account, all of the information may be permanently deleted.

You might want to think about things like whether you want your friends and family to be able to look at your social media photos or things you’ve posted or whether there are important documents saved in your email folders that people will need access to. You may also want to think about whether there is information on your accounts that you don’t want family or friends to be able to access.

It’s also possible to leave messages or notifications for friends and family after you’ve died. The website MyWishes has more information about this.

Put plans in place for your accounts

Companies have different rules about what happens to your account when you die and whether someone else can have access. It’s a good idea to look at your options for each account and decide what you want to do with it.

You could write down your account details and passwords and leave these with someone you trust. Check with each account before giving someone else your password – someone else may not be able to legally access your account, according to the terms and conditions of the company. Some services allow you to assign someone you trust to have access to some or parts of your account after you die and when your account becomes inactive. You need to check with each company if they provide this option.

You could leave written instructions about what you want to happen with your online accounts. This document is sometimes called a social media Will. It’s different to a normal Will. The Digital Legacy Association has a template that you can use to make a social media Will.

You could choose someone to manage your accounts. The person you ask to do this is sometimes called a ‘social media executor’ or ‘digital executor’. You might choose a friend, family member or your solicitor. You may want to leave instructions about your social media and online accounts in a separate letter rather than in the formal Will. This is because after your death, the Will and its contents may become public information so any login details could be seen by others.

It is possible to add your preferences for your social media accounts to your main Will, which is a legal document. But sometimes the terms of service for the company mean that what you’ve requested to happen isn’t possible. It’s best to check what your options are with each individual company. These might change, which means you’d need to update your Will.

If you’re not sure what to include in your Will, you can ask a solicitor. You can find a solicitor on the Law Society’s websites – see below. You might want to ask whether they are accredited under the Law Society’s Wills and Inheritance Quality Scheme Protocol (WIQS), as this means that they follow best practice procedures.

What happens to my online banking?

Bank accounts are counted as part of your estate (money, possessions and property). This means that your bank accounts will be managed by the executors of your Will. You don’t need to change your online banking. After you’ve died, your family, friends, or executors of your will need to tell your bank. You may wish to keep an updated list of your online bank accounts in a secure place with your Will so that your executors know which banks to contact after you have died. It may be helpful to keep a paper version to make it easier for your executors to access. Sharing details of your bank accounts may be especially important for ‘online only’ bank accounts and bank accounts that don’t provide regular printed statements.

Check with your bank before giving someone else the log in details for your online banking. If you give someone else the details and the account is accessed without your permission, the bank may refuse to compensate you for any damage.

The Law Society has databases to find contact details of solicitors and regulated law firms:

About this information

This information is not intended to replace any advice from health or social care professionals. We suggest that you consult with a qualified professional about your individual circumstances. Read more about how our information is created and how it’s used.

Death in the 21st century: Our digital afterlife

Death in the 21st century: Our digital afterlife

Death in the 21st century: Our digital afterlife

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Credit: CC0 Public Domain

Social media pages and accounts often turn into memorials when someone dies, giving people a chance to still feel connected to those they’ve lost. But after we’re gone, who owns the information on our pages? Who can access them?

Faheem Hussain, a clinical assistant professor in the School for the Future of Innovation in Society (SFIS) at Arizona State University (ASU), will explore this topic in his discussion at the annual meeting of the American Association for the Advancement of Science (AAAS).

“It’s certain we’re going to be dead, so where’s the design for that?” said Hussain. “There’s a huge design disconnection.”

The dilemma of what happens to your digital self after you’re gone is something Hussain has seen first-hand. He’s witnessed family and friends struggling to gain access to a loved one’s social media page after that person passed away, and he’s gotten Facebook friend suggestions for a person who had died.

“We have normalized talking about safety and security of our data and privacy, but we should also start including the conversation of how to manage data afterwards,” said Hussain. “It’s a bit tricky because it involves death and no one wants to talk about it.”

Hussain has spent several years researching technology in society, including the digital afterlife, social media and digital rights. He’s been documenting the changes companies have made in terms of managing the data of people who have died, along with digital afterlife provisions.

In his research Hussain and his colleagues looked at digital afterlife policies, cases and user feedback, specifically in developing countries. They found that people in these countries are more vulnerable to the challenges associated with the digital afterlife, including privacy issues, digital ownership and legal framework. Hussain and his colleagues concluded that more needs to be done to lessen the gap in digital afterlife policies between developed and developing countries, to ensure solutions are inclusive and truly global.

Problems surrounding the digital afterlife are not slowing down anytime soon. A recent study found that Facebook could have nearly 5 billion dead users by 2100. Hussain will discuss the policies that need to be in place regarding digital products and platforms and what needs to be considered in their design.

“It’s important for us to talk about the digital afterlife,” said Hussain. “You need to manage what will happen when you are not here anymore.”

In recent years, many digital platforms, including Facebook and Google have been making changes when it comes to the death of users. Facebook will turn your page into a memorial, and you can appoint a legacy contact to look after your account. With Google, you can set up a trusted contact who will get access to parts of your account if it’s been inactive for a period of time. But much of this in the hands of the user, who has to set up these settings in preparation for death. Hussain said we need to talk about our concerns and communicate with the companies providing these digital services.

“I think it’s important that we have a say in it,” said Hussain.

More information: Hussain will give his presentation of “Our Digital Afterlife” during the session “Death in the 21st Century: What is Left Behind” on February 16.

Provided by Arizona State University

Wills to protect assets and ensure they go to the right people are essential

Wills to protect assets and ensure they go to the right people are essential

Wills to protect assets and ensure they go to the right people are essential

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 Wills to protect assets
Breaking the taboo about talking about death is essential to ensuring wealth passes on to the right people

For many, making a Will is something to be considered much later in life. The assumption that we are not old enough, own nothing of significant value or the simple belief that our loved ones will inherit our assets, are just some of the reasons why so many people in the UK don’t yet have a Will.

Why is it important to make a Will?

If a person dies without a valid Will, then his or her estate (monetary assets, personal belongings and property) is shared in accordance with the rules of intestacy.

The rules of intestacy are specific, and assets can only be distributed between family members. With the number of couples cohabiting increasing to over 3.4 million in 2019 according to Office of National Statistics, many wrongly assume their partners would inherit their assets in the event of death.

Currently, the law stipulates that if you are married but do not have a Will, your spouse will receive all of your assets if you do not have any children. If you do have children, this is not necessarily the case and whether or not your spouse will inherit your entire estate will depend on its value. If unmarried, only blood or adopted relatives will be legally entitled to your estate e.g. children, parents, grandparents, niece or nephews, cousins etc. If you do have a Will, it’s important to make sure it deals with all of your estate otherwise some assets could still pass under the intestacy rules.

Know where your investments and savings are

Knowing where your investments are and leaving a record of these can help relieve some of the unnecessary stress your loved ones may experience when reviewing and administering your estate. This includes providing details of your bank accounts, stock and shares certificates, savings accounts, foreign assets, pension information and any other investments you may have.

It’s also important to leave details of any social media accounts that are going to be left behind. Today, our estate can also include the digital legacy we leave behind, and many solicitors are now experiencing an increase in families squabbling over ownership of blogs, pictures, websites and social media profiles. Many silver-surfers have given little thought about who should have custody over these digital assets, unintentionally causing complications.

Seeking legal advice to minimise potential disruption

Many people are attracted to the idea of making a ‘DIY’ Will as they expect it to be more cost efficient than using a solicitor. However, this can cause unnecessary risks as poorly drafted Wills can often be subject to prolonged probate ordeals, legal bills and excessive tax, and other general mistakes that could render the document invalid, which again can cause additional stress for your family.

The cost of legal advice is very dependent on the complexity of the Will. For example, a ‘simple Will’ could incur fees of around £250, whereas drafting a ‘specialist Will’ would normally start at minimum of £500. A solicitor would help summarise the individual’s finances and investments and ensure that the most effective choices are being made.

Naming beneficiaries to inherit your assets

Often, the beneficiaries of a Will are usually family members or close friends, but it can also include charitable organisations and institutions. Choosing who will inherit your assets may seem like a simple task, but it can be a lot more complicated than initially anticipated. Here are a few things to consider:

Do you have more than one beneficiary?

When leaving your estate to multiple beneficiaries you need to decide how to distribute your assets – again, it is recommended that you seek legal advice. They could be distributed equally; unequally; or you can specify that your assets should be sold, and any profits shared among recipients; or distribute a portion of the estate between family members with the remainder given to charities.

What happens if your beneficiary dies before you?

You should name a second recipient to receive your assets just in case your primary beneficiary dies before you; or, if they choose not to accept their inheritance.

Have you updated your Will recently?

Research from financial advice service shows that 15% of people have not updated their Wills over a period of ten years or more. This is worrying given that relationships between individuals and their beneficiaries can change meaning that assets may be given to those the deceased did not intend at the time of their death. It is essential to ensure your Will reflects your current circumstance and your beneficiaries are those you intend to give your assets to.

Can those under the age of 18 be a beneficiary?

Minors under the age of 18 can be beneficiaries within your Will, but often monetary assets will be put in a trust and then given out in a lump sum when they become of age. Usually, you would nominate trustees to look after the money and oversee accounts. This is similar if a minor inherits property as the trustees would manage it until the child can assume control. If you think a trust should be part of your Will, separate planning and legal advice should be taken.

What’s the difference between an executer and beneficiary?

A beneficiary is an individual who receives assets of your Will, whereas the executer is the individual who administers your estate in the event of your death. The executor’s job shouldn’t be taken lightly as there are many tasks involved including:

  • communicating with all parties involved in the estate;
  • applying to the Probate Registry for a Grant of Probate;
  • calculating the value of all the deceased’s assets;
  • settling debts;
  • distributing the estate to beneficiaries as well as selling any property and transferring investments.

Managing and paying off debts

If you’re in debt when you die, any monies owed become liable on your estate. This means that any assets you currently own will be used to pay off debts. The named executors of your Will, or administrators if no Will is written, will assume this responsibility, ensuring that everything is payed before the beneficiaries receive their share. Sorting out your finances prior to death will help simplify this process, while ensuring your intended recipients will still benefit.

A common myth is that if your estate does not cover the cost of your debts, your surviving relatives will have to settle these – this is not true. Dealing with an insolvent estate can be very difficult and no one should undertake this without specialist advice because if the debts are paid off in the wrong order the executor can become liable for these. Provided it is dealt with correctly any remaining debts should be written off. However, if you have co-signed loan or someone has acted as your guarantor, this person would be liable to pay the outstanding debt.

The only way to ensure your savings and investments are passed on to your loved ones is by writing a Will. Seeking expert legal advice will help you make the most effective choices throughout the process and ensure your final wishes are upheld.

Christine Thornley is head of Wills, Trusts and Probate at Gorvins Solicitors

Manage your digital afterlife

Manage your digital afterlife

Manage your digital afterlife

Click here to view original web page at Manage your digital afterlife

Have you ever thought about the fact that your ‘digital estate’ may incorporate just as many items as your material belongings? Everything from music, photos, accounts, social media profiles and attempted memoirs rest on the cloud. That’s a lot of personal stuff to manage upon one’s death, much like a house full of cherished possessions.

These days, there’s just as much need for a ‘digital executor’ as there is for one in a traditional sense. Here’s a look at how to manage your digital afterlife.

Consider your wishes

First thing’s first, what do you want to happen with your accounts when you die? Much the same as your Will, deciding on this beforehand saves your family and friends from any doubt about your wishes. For example, do you want your social media accounts deleted or continued, perhaps for business or memorial purposes?

Have a think about all your accounts, what they contain, and the best course of action for either continuing them or shutting them down. This way, you can leave instructions as to how you’d like them managed. As an added bonus of being prepared, this is a great way to clean up your ‘digital estate’ now, as it’s easy to forget just how many unused or ineffective accounts we have!

Give someone your passwords

If there’s someone you absolutely trust, giving your login details to them is by far the easiest method of ensuring your wishes are carried out, whether that’s to keep or delete accounts. This is particularly true for social media sites, as even family members aren’t given access to passwords.

This makes it easy for someone to delete your accounts, update them and keep an eye on them in case of spam or hackers. Don’t want to give anyone your passwords right now? Research password management services that let you appoint a nominee who’ll gain access to your passwords upon request, in the case of death or incapacity.

Research the options for different social media platforms

Depending on the social media platforms you use, different rules apply to account deactivation and their ongoing use. First of all, make sure family or friends know which accounts you have and what you’d like done with them. One of the most popular options is to have an account memorialised, so the content remains visible to those it was shared with in the first place.

When you nominate a legacy contact on Facebook, through the Settings and Security tabs, that person can respond to friend requests and add posts to your profile. You can change the nominated legacy contact at any time. It’s possible to memorialise Instagram accounts, however, they can’t be changed. Twitter allows for deactivation, but no one will be able to gain access to the account unless you’ve given them your login details.

Make a detailed list of your digital accounts and devices

Along with social media, and presuming financial and insurance accounts will be in the hands of a power of attorney, you could have accounts including:

  • Email addresses
  • E-readers
  • Shopping accounts
  • Websites and blogs
  • Copyrighted materials
  • Video sharing accounts
  • Online storage accounts
  • Subscription accounts
  • Domain names

Keep a record of them and forward this to the appropriate people, including logins and passwords so they can be easily deactivated or managed. This includes digital assets that may require passwords to access, such as external hard drives, tablets, smartphones and digital music players. With the information about everything ‘digital’ all recorded in one place, it’ll be easy for friends and family to manage.

Back everything up

Whether you view it as a shame or a fantastic convenience, many of us don’t have photo albums anymore, let alone handwritten letters. Consider compiling cherished memories and backing them up on a hard drive, specifically for this purpose. This way, you don’t run the risk of anything becoming lost in the cloud, in the case of complications with retrieving passwords or information.

Source: Clientcomm library

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