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Unsent text accepted as dead man's will by Australian court (bbc.co.uk)
102 points by CarolineW 11 months ago | hide | past | web | favorite | 50 comments

Along similar lines, there's a famous Canadian case where a farmer scratched a will into the fender of his tractor when got trapped under it - http://news.usask.ca/archived_ocn/09-jan-23/see_what_we_foun...

I better clean up my drafts folder. I have lots of unsent messages that I wrote in impulsive moods, but had the wherewithal not to send. And in most cases, fortunately never sent.

Why not just encrypt your phone? Unless you give someone else (spouse?) unfettered access to it, I guess. They you'd already trust him or her.

Can you trust that your phone won't be unlocked by court order? Apple does accede to lawful court requests.

Because if it's encrypted then even Apple can't unlock it

But they cam write and deploy a version of iOS which will not respect the "wipe the phone" command after 10 false password tries, making brute-forcing viable (it also helped that it was obvious the phone just needed a 4-digit number to unlock). Luckily they refused to do that and won in court.

Can the OS be updated without unlocking?

I... believe so? Speaking from experience with older models: You can hold a combination of the keys to go into https://www.theiphonewiki.com/wiki/DFU_Mode, and if you plug the device to your computer, you can reflash the OS. The phone would have multiple partitions, so it would only flash the OS partition with the new version of the OS, and leave the (encrypted) data partition alone.

I side with the Australian court in this instance (based on the article).

I would disagree if he already had an established will, and the court decided to supersede it by substituting the unsent text.

But, isn't the unsent text preferable to nothing? Seems like the unsent text is the superior to nothing.

Me too. The article I read (linked off reddit, prolly the same one) said there were details like banking information etc that it was likely only the dead man had. So it seems like the law took a healthy look at it and came to the right conclusion.

But he's also married... And the article doesn't say, but what if he had children? I'm sure we can all relate to writing a post/message and then deciding it was wrong and not following through.

An interesting case for sure.

Is there a chance that the unsent text does not reflect his wishes? Absolutely.

But, is it more likely that his true wishes are closer to nothing?

The alternative is not "nothing", but what he knows of the default distribution by law if he leaves no will. It's always dangerous to try to guess what's going on in people's heads.

Well said. By "nothing" I should've said what you did.

Note it won't override the wife's access to what's hers.

He doesn't have a 'his bank account' in that x% of that is his wifes and the same with the hidden money etc (baring a prenups)

Also it was not considered a draft/unsent legally. The judge considered it purely a medium to get a final will to his family without them learning of his plans.

"I find that having the mobile phone with him at the place he took his life so it was found with him and not sending the message, is consistent with the fact that he did not want to alert his brother to the fact that he was about to commit suicide, but did intend the text message to be discovered when he was found."

How do they know the deceased man wrote the text, and not someone else?

How do we know he didn't leave it unsent because he was still unsure if he wanted to commit to that course of action?

I write "drafts" of things and leave them unsent from time to time. After a cooling off period I decide that I don't actually feel that way or think better of it.

Unsent to me is a really bold line to cross. Email / draft form stuff is a scratchpad for developing how you feel and working out your thoughts.

Which is why there are courts to decide these things.

In this case the guy wrote this very close to the time he took his own life, and the wording does signal that he intended this to be his will and last wishes.

If I were a judge I would have decided the same.

Killing himself was a pretty clear signal that he was done trying to work out his thoughts.

Why not press send then?

My guess -

The message might not have sent due to bad signal.

He may have written the message days before when he was feeling suicidal but didn't send to not alert the family. Later on he killed himself impulsively. Anywhere from one-third to 80% of all suicide attempts are impulsive acts, according to The New England Journal of Medicine. 24% of those who made near-lethal suicide attempts decided to kill themselves less than five minutes before the attempt, and 70% made the decision within an hour of the attempt. [1].


Any answer is speculation.

My guess would be that he knew that sending an SMS will to his brother would cause his brother to reach out to him.. a conversation he'd rather just avoid since he seems like his mind was made up.

It seems like they decided based on the context of the case:

> In the message, the man gave details of how to access his bank account and where he had hidden money in his house.

Ok, i stole the bank details of grandpa. Let's craft his will by fake sending a text.

and where he had hidden money in his house.

How would someone else know this? You can't just ignore facts that don't fit your theory and still expect people to take you seriously.

See how you assume identifying “hidden money” makes the Will legitimate? That’s the type of bias a fraudster, already willing to fake the Will of a family member, would willingly exploit.

How difficult would it really be to hide money/cash in the family members house and “identify” the amount/location of said funds in the fake Will to give it credibility?

So the brother/nephew found a way to access his bank account, went to the man's house and planted THEIR money without the man or his wife knowing, and took the phone/ gave it back with the draft, days before the man killed himself?

Think about what you just said and whether Occam's razor might apply here.

If you follow the OP, he is talking about the concept of forging Wills (in fact he is making a bad joke about doing this to his own Grandpa) not the specific facts of this case.

That said, you may be very surprised at what fraudsters do in practice. Accessing bank accounts of elderly parents with or without their knowledge, accessing their electronic devices, or even creating actual forged Wills (complete with signature and notarized) is not exactly unheard of in law. Even murders made to look like suicide specifically to claim inheritance isn't just the stuff of fantasy and movies, same goes for murders made to look like accidents to claim life insurance. In fact very often it is actually a parent who murders a child for insurance money.

Here is a link that includes 21 such cases: https://www.jrcinsurancegroup.com/murder-for-life-insurance-...

I'm not assuming that. I'm saying that you can't just decide not to evaluate that bit when constructing a hypothesis.

That isn't impossible to do, especially for family.

There are many scenario where you can get hold on that information.

Don't know why you're getting downvoted.

In terms of bizarre things family members have done to inherit things, this sort of escapade probably wouldn't even breach the top 100.

Want to prevent it? Write a real will as opposed to nothing.

And make sure it gets official as you die, either by being public or handed to a 3rd party.

Multiple notarized copies, just to ensure it hasn't been altered. If you do alter it, again make sure there are multiple copies and that it contains verbiage that it supersedes the previous document

Not a lawyer, not legal advice, you know the drill. However, the above is from my lawyer and is the policy I follow. He witnesses it AND it is notarized by a third party.

Drug addiction + elderly family members is a terrible combination.

More to the point, what about the witness requirements? I'm fairly sure an unwitnessed unsent letter wouldn't meet that requirement. But can we have a link to the actual ruling to reduce speculation please?

In some places, an unwitnessed handwritten will is in fact recognised: https://en.wikipedia.org/wiki/Holographic_will

In most non-common Law countries I believe, one of the three requisites however (at least in Italy, France and Spain) is that is should be (besides handwritten and signed) also dated "exactly" (day/month/year).

A not-so-uncommon issue with holographic wills is that multiple versions may exist, in which case only the last one (date) is valid.

Also, parts of a holographic will may be nullified if contrary to Law provisions, such as - an example - violations to the reserve share.

My thoughts exactly. This seems incredibly iffy legally.

It's exactly the opposite, legally, having been ruled on by the Supreme Court :)

As the saying goes, they're not final because they're right, they're right because they're final.

This is something I see people and especially technology people struggle with a lot. After you strip away all the flowery language, the legal system is just a way we keep people from trying to bloodily solve their own problems with violence.

With this in mind, a final arbitrator makes a lot of sense. The point isn't to find out how the universe works, make a product that is economical viable and functioning, or determine absolute truth. The point is to keep people from killing each other in the fairest way possible.

It also doesn't have to be consistent. That's why we have laws AND judges. Sometimes the law is wrong because of the context of the specific case. In the US we throw a lot of layers at the problem to try to avoid human tyranny, but at the end of the day human tyranny is preferable to the tyranny of an ambiguously written law.

I wonder if you'd feel the same if you got pulled over and had a few thousand in cash taken by police under the assumption that it was involved in a crime without any recourse. I suspect you'd prefer the literal interpretation of the constitution in that case.

The point being made is that the choice isn't between 'strict constitutionalism' and loosey-goosey-legalism, it is between loosey-goosey-legalism and feudal warlordism. I realize a disturbing number of techies are actually attracted to that (even if they think it will turn out differently), but I think most of the US populace thankfully isn't.

The theory is that there's a social analogue of Gödel's theorem, the humans are incapable of defining a formal set of rules for governing themselves that provides non-absurd outcomes in all cases. I believe this, but of course we don't have solvers for human reasoning (otherwise we could test the theory).

So sure, I absolutely agree with you that civil forfeiture is just a new name for highway robbery by the King's men. But for literalist constitutionalism to be viable, it has to handle hard cases as well as simple ones in zero-and negative-sum games, and the US Constitution (any document) leaves huge areas of potential conflict undefined. So your choice reduces to either it won't work with real humans, or you have to interpret it. To interpret it means designating someone (or some people) as official interpreters. And at some point, you find yourself back where we started, arguing about the interpretation of justices who are right because they are final.

I'm trying to be descriptive not prescriptive. It's not really about whether or not I'm happy with any given result.

Let's say that suddenly there's a law that makes it illegal for the police to take anything out of a car AND we also eliminate all human judges. This completely stops civil forfeiture. Everyone is happy.

One day someone steals a priceless wax sculpture that represents invaluable cultural history for an area. This person throws the sculpture into a car and then drives off. After a short car chase the police disable the getaway car. The day is saved! Wait not yet. It happens to be a very hot day.

There's two things that can happen. The first is that the police can leave the wax sculpture in the car and because it's so hot it melts. The locals get mad and riot because the police willfully let their cultural history turn into a puddle. The second is that a police officer takes the wax sculpture out of the car, but then that officer is arrested for violating the law mentioned above. Then the locals get mad and riot because the government arrested the hero who saved their cultural history.

A lot of governance is a balancing act to prevent anarchy from taking over. If a human is in charge someplace then they can overrule a law that either doesn't make sense or is otherwise problematic. This can lead to tyranny, but hopefully the government itself is setup to prevent this as much as possible.

It's funny how quickly you turn from a strict Constitutionalist to an activist judge based on your political views.

For instance, most left-leaning people probably think that in the civilian forfeiture rule, the judges should take a strict constructional interpretation of the constitution and forbid it.

However, when it comes to striking down immigration bans based on an economic argument[1], all of a sudden you want an activist judge.

I'm not saying I care either way, but I care about consistency. I think we are based on a common law system, and once an economic argument is successfully made it can be make at any time. If we're ok with that, we should be ok with civil forfeiture.

[1] The state says the ban would harm its tourism industry and the ability to recruit foreign students and workers.

Law is generally clearly defined for common situations. But you can't anticipate all possible contingencies so courts also have to make findings of fact, frequently on limited or incomplete information.

pragmatically, the wife is obligated to disagree with that.

sorry things turned out that way for her and him.

this will give some nasty people ideas whether or not this case was legit.

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