In recent news out of Australia, an Australian court held that an unsent text message was a valid will. The decedent (person who died) was a man who took his own life after composing an unsent text message stating that he wanted his all of his possessions to go to his brother and nephew. The unsent text message also included his request for where he wanted his ashes to be buried and how to access his bank account. According to the news article, the Australian Court held that the decedent knew what he was doing, and therefore the text message was a valid will. Could this happen in Florida? 


What are the requirements for a valid will? 

First we need to look to the statute in Florida for the requirements for the execution of a valid will. We have already reviewed this in a previous blog post. The basic requirements for the execution of a valid will according to section 732.502, Florida Statutes are:

  1. The will must be in writing.
  2. The person executing the will must have testamentary capacity.
  3. The will must be signed by the testator at the end or a person who was authorized to sign for the testator signed the will at the end. If a person signed for the testator it must have the language included that the person signing “signed in the testator’s presence and at the testator’s direction.”
  4. The will must be signed by the testator or person at the testator’s direction in the presence of two witnesses. The two witnesses must sign in each other’s presence and in the presence of the testator.

An unsent text message cannot be considered a valid will in Florida.

When you look at these requirements, the unsent text message could clearly not meet the requirements of a valid will in Florida. Most obviously, you can’t sign a text message! Also, there is no statement that the text message was made in the presence of two witnesses. Clearly, the Australia has a different standards for the assessment of whether a will is valid. In Florida, an unsent text message, such as the one in the Australian case, is similar to a holographic will, which is invalid as a matter of law under Florida law. A holographic will is a will that is handwritten by the person who signs it, without the required witnesses under Florida law. This type of will is invalid as a matter of law in Florida. In re Estate of Salathe, 703 So. 2d 1167, 1168-1169, (Fla. 2d DCA 1997). Therefore, an unsent text message does not meet the requirements under Florida law and will not be held to be valid.

This case is a good example of the differences between jurisdictions when it comes to probate and estate planning. Florida clearly has a tougher standard than Australia to meet in order for a will to be enforced by the court in a probate proceeding. Florida may have a different standards compared to other states in the U.S. as well. If you want to have an effective will at the time of your death, it needs to be executed according to the statutory requirements. A person cannot assume that anything that is written down prior to his or her death will be upheld by a Florida court.


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