tag:theconversation.com,2011:/ca/topics/wills-2937/articlesWills – The Conversation2024-02-27T15:05:30Ztag:theconversation.com,2011:article/2226902024-02-27T15:05:30Z2024-02-27T15:05:30ZGifts that live on, from best bodices to money for bridge repairs: Women’s wills in medieval France give a glimpse into their surprising independence<figure><img src="https://images.theconversation.com/files/577678/original/file-20240223-20-h7u1l8.jpeg?ixlib=rb-1.1.0&rect=17%2C1%2C949%2C949&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Women's wills and last testaments provide a more nuanced picture of life in the Middle Ages than medieval stereotypes allow, such as that depicted in "Death and the Prostitute" by Master of Philippe of Guelders.</span> <span class="attribution"><a class="source" href="https://inpress.lib.uiowa.edu/feminae/DetailsPage.aspx?Feminae_ID=37729">Gallica/Bibliothèque nationale de France/Feminae</a></span></figcaption></figure><p>In medieval Europe, views of women could often be summed up in two words: sinner or saint.</p>
<p>As <a href="https://web.uri.edu/history/meet/joelle-rollo-koster/">a historian of the Middle Ages</a>, I teach a course entitled Between Eve and Mary: the two biblical figures who sum up this binary view of half of humanity. In the Bible’s telling, Eve <a href="https://www.biblegateway.com/passage/?search=Genesis%203&version=KJV">got humans expelled from the Garden of Eden</a>, unable to resist biting into the forbidden fruit. Mary, meanwhile, <a href="https://www.biblegateway.com/passage/?search=Luke%201&version=KJV">conceived the Son of God</a> without human intercourse. </p>
<p>Either way, they’re daunting models – and either way, patriarchy considered women in need of protection and control. But how can we know what medieval women thought? Did they really accept this vision of themselves? </p>
<p>I do not believe that we can totally understand someone who lived and died hundreds of years ago. However, we can try to somewhat reconstruct their frame of mind with the resources we have available. </p>
<p>Few documents that survive from medieval Europe were written by women or even dictated by women. Those that do are often formulaic, full of legal and religious language. Yet the wills <a href="https://muse.jhu.edu/article/363743">and censuses</a> that survive, and which I study, open a window into their lives and minds, even if not produced by women’s hands. These documents suggest that medieval women had at least some form of empowerment to define their lives – and deaths.</p>
<h2>A centuries-old census</h2>
<p>In 1371, the city of Avignon, in present-day France, <a href="https://doi.org/10.1353/jowh.2010.0480">organized a census</a>. The resulting document is ripe with the names of more than 3,820 heads of household. Of these, 563 were female – women who were in charge of their own household and did not shy away from declaring it publicly.</p>
<p>These were not women of high social status but individuals scarcely remembered by history, who left only traces in these administrative documents. One-fifth of them declared an occupation, including both single and married women: from unskilled laborer or handmaid to innkeeper, bookseller or stonecutter. </p>
<p>Nearly 50% of the women declared a place of origin. The majority came from around Avignon and other parts of southern France, but some 30% came from what is now northern France, southwest Germany and Italy. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An illustration of a blond woman in a pink dress carrying a wooden vessel on top of her head outside." src="https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=754&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=754&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=754&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=948&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=948&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577715/original/file-20240224-24-qcjvza.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=948&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An illustration from 11th-century physician Ibn Butlan’s text Tacuinum sanitatis.</span>
<span class="attribution"><a class="source" href="https://gallica.bnf.fr/ark:/12148/btv1b105072169/f186.image.r=%22Latin%209333%22?lang=EN#">Bibliothèque nationale de France</a></span>
</figcaption>
</figure>
<p>The majority of ladies who arrived from faraway regions arrived alone, suggesting medieval women were not always necessarily “stuck” at home under the domination of a father, brother, cousin, uncle or husband. Even if they wound up that way, they seemed to show some guts by leaving in the first place. </p>
<h2>New cities, new lives</h2>
<p>In cities like Avignon, with a large proportion of immigrants, long-lasting lineages disappeared. As <a href="https://ehess.academia.edu/JacquesChiffoleau">historian Jacques Chiffoleau</a> <a href="https://search.worldcat.org/title/9196772">has suggested</a>, most late medieval Avignonese were “orphans” who lacked extended family networks in their new surroundings – <a href="https://doi.org/10.4324/9780203866085">and this was reflected in the culture</a>.</p>
<p>Since the 12th century, women in the south of France had been considered “sui iuris” – capable of managing their own legal affairs – if they were not under a father or husband’s control. They could dispose of their own possessions and distribute them at will, both <a href="https://www.routledge.com/Death-in-Medieval-Europe-Death-Scripted-and-Death-Choreographed/Rollo-Koster/p/book/9781138802131">before and after death</a>. Married daughters’ dowries often prevented them from inheriting parents’ property, but they could when no male descendants could be found.</p>
<p>In the late Middle Ages, women’s legal rights expanded as urbanization and immigration changed social relationships. They could become legal guardians of their children. What’s more, judging by women’s testaments, widows and older daughters did make legal decisions of their own without the “required” male guardianship.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An old manuscript page with lines of font and a brightly colored illustration of men and women standing in a field while others climb trees." src="https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=768&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=768&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=768&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=965&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=965&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577717/original/file-20240224-20-gv83x8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=965&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A page from the Book of Hours by Master d'Alelaide of Savoia, a 15th-century artist, shows the harvesting of pears and apples.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/book-of-hours-by-master-dalelaide-of-savoia-detail-news-photo/1011961044?adppopup=true">PHAS/Universal Images Group via Getty Images</a></span>
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<p>In addition, married women could <a href="https://www.routledge.com/Across-the-Religious-Divide-Women-Property-and-Law-in-the-Wider-Mediterranean/Sperling-Wray/p/book/9780415807173">make legally binding decisions</a> as long as their husbands were present with them in front of a notary. Although husbands were technically considered their wives’ “guardians,” they could declare them legally free of guardianship. Wives would then be allowed to name their witnesses, appoint their universal heir and list donations and bequests to individuals and the church, which they hoped would save their soul.</p>
<h2>Speaking beyond the grave</h2>
<p>European archives literally overflow with legal documents that are awaiting discovery in musty boxes. What is lacking is a new generation of historians who can analyze them and paleographers who can read the handwriting.</p>
<p>Everyone high and low used notaries’ services for contractual forms, from an engagement and marriage to the sale of property, business transactions and donations. In this mass of documentation, <a href="https://research-repository.st-andrews.ac.uk/handle/10023/3052">wills provide a refreshing perspective</a> into medieval women’s agency and emotions as they contemplated the end of their lives.</p>
<p>In the 60 or so <a href="https://research-repository.st-andrews.ac.uk/handle/10023/3052">women’s testaments kept in Avignon</a>, women named where and with whom they wanted to be buried, often choosing their children or parents over their husbands. They named which charities, religious orders, hospitals for the poor, parishes and nunneries would benefit from their generosity, including bequests for repairs on Avignon’s famous bridge. </p>
<p>These women may have dictated their last wishes lying in bed, waiting for death, with the notary guiding their decisions. Still, given the things they dictated – donations for the dowries of poor girls, for their relatives and friends, to have their names remembered in Catholic Masses for the dead – I would argue that we are hearing their own voices. </p>
<h2>Rosaries, repairs and furs</h2>
<p>In 1354, Gassende Raynaud of Aix asked to be buried with her sister, Almuseta. She left a house to her friend Aysseline, while Douce Raynaud – who may have been another sister – received six dishes, six pitchers, two platters, a pewter jug, a cauldron, her best cooking pot, a cloak of fur with muslin, a big blanket, two large sheets, her best bodice, a little coffer, and all the mending thread and hemp that she possessed. She left a coffer, a copper warmer, the best trivet of the house and four new sheets to her friend Alasacia Boete.</p>
<p>Gassende’s generosity didn’t stop there. Jacobeta, Alasacia’s daughter, received a rosary of amber; Georgiana, Alasacia’s daughter-in-law, a bodice; and Marita, Alasacia’s granddaughter, a tunic. To her friend Alasacia Guillaume, Gassende left the unusual gift of a portable altar for prayers and an embroidered blanket. To Dulcie Marine, she bequeathed a choir book called an antiphonary and the best of her cloaks or furs.</p>
<p>In another Avignon will, written in 1317, Barthélemie Tortose made bequests to several Dominican friars, including her brother. She left funds to the prior of the order, her brother’s supervisor: perhaps rewarding the “boss” in order to keep her brother in his favor. She provided for charities and repairs for two bridges over the violent Rhône River, but also substantial support to provide food and clothing to all nuns’ convents of the city. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An illustration in shades of green and red showing two towns connected by a bridge over a river with a few small islands in it." src="https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=226&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=226&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=226&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=284&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=284&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577716/original/file-20240224-22-2jvol2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=284&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A 16th-century illustration of the Rhone River, with Avignon on the right.</span>
<span class="attribution"><span class="source">Wikimedia</span></span>
</figcaption>
</figure>
<p>More especially, she supported her female kin, such as leaving rental income to her niece, a Benedictine nun. She then requested that her clothes be cut into habits for nuns and liturgical garments. </p>
<p>We can get a glimpse at <a href="https://research-repository.st-andrews.ac.uk/bitstream/handle/10023/3052/WomenandWillsFrance2012Rollo-KosterandReyerson.pdf?sequence=7&isAllowed=y">just how personal these bequests were</a>: These women assumed that what they had touched, or what had touched their skin, would also touch another’s. Most of all, they expected that their possessions would transmit their memory, their existence, their identity. </p>
<p>What’s more, medieval women could be pretty radical.</p>
<p>At least 10 women whose wills I’ve read asked to be buried in monks’ cassocks, including Guimona Rubastenqui. Widow of an Avignon fishmonger – usually a profitable occupation – she requested that Carmelite brother Johannes Aymerici give her one of his old habits, for which she paid him six florins.</p>
<h2>Asserting their will</h2>
<p>So, what do we make of all this?</p>
<p>It is impossible to completely reconstruct how people lived, loved and died centuries ago. I have spent my adult life thinking “medieval,” yet know I will never get there. But we certainly have clues – and what I call an educated intuition.</p>
<p>By modern standards, these women faced real limits on their power and independence. However, I have argued that they “freed” themselves at death – their wills presenting a rare opportunity to make personal legal decisions and to live on in written records.</p>
<p>Medieval women could have agency. Not all of them, not all the time. But this small sample shows that they could choose whom they wanted to reward and whom they could help. </p>
<p>As for the burial in men’s garb, I have no way of knowing whether their wishes were followed. But from my perspective, there is something extremely satisfying in knowing that at least they tried.</p><img src="https://counter.theconversation.com/content/222690/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joelle Rollo-Koster does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>European women’s rights expanded in early medieval cities, though they were still limited. Last wills and testaments were some of the few documents women could dictate themselves.Joelle Rollo-Koster, Professor of Medieval History, University of Rhode IslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2189742023-12-01T14:06:47Z2023-12-01T14:06:47ZWhy some people from the north of England end up leaving everything to King Charles when they die<p>What connects an ex-miner and lifelong republican, who once manned the protest lines at Orgreave, with King Charles III? The surprising answer, as <a href="https://www.theguardian.com/uk-news/2023/nov/23/turn-in-his-grave-the-dead-whose-assets-went-to-king-charles-estate">the Guardian reported</a>, is that the ex-miner’s estate now forms part of a fund which generates private income for the monarch. </p>
<p>The reason is the legal principle of <em><a href="https://www.gov.uk/government/organisations/bona-vacantia">bona vacantia</a></em>. This is loosely translated as “ownerless goods” and refers to a process through which the estates of people who die without heirs in England and Wales are claimed by the crown. </p>
<p>The principle of <em>bona vacantia</em> operates when a person dies in England and Wales without leaving a valid will disposing of all of their assets and there is no heir to their estate under the <a href="https://www.gov.uk/inherits-someone-dies-without-will">intestacy rules</a>. These rules, set out in the <a href="https://www.legislation.gov.uk/ukpga/Geo5/15-16/23/contents">Administration of Estates Act 1925</a>, set out the classes of people who can inherit the property of an intestate (or partially intestate) person. </p>
<p>These classes are ranked and then gone through in order to see if an heir can be found. In broad terms, no surviving relative further away from the deceased than a first cousin can inherit. Remoter family members are generally excluded. When no one closer than a cousin can be found, the unclaimed part of the estate (the <em>bona vacantia</em>) passes to, and is collected by, the crown. </p>
<p>Most of these estates are claimed by the <a href="https://www.gov.uk/government/people/susanna-mcgibbon">Treasury solicitor</a>, the government legal department which handles the administration of the estate and then passes the surplus to the government for its general expenditure. </p>
<p>However, the estates of people who died resident in the historic County Palatine of Lancaster (including greater Manchester, Merseyside, Lancashire and the Furness area of Cumbria) pass under the <em>bona vacantia</em> rules to the Duke of Lancaster. That is, the current reigning monarch, King Charles. </p>
<p>The estates collected by the Duchy of Lancaster are incorporated into its private estate of land, property and assets, with the function of providing private income for the monarch. </p>
<p>This is an extremely ancient power, dating back to a 1377 grant made by Edward III to John of Gaunt when he was Duke of Lancaster. Today, it is part of the <a href="https://www.legislation.gov.uk/ukpga/Geo5/15-16/23/contents">Administration of Estates Act 1925</a>. </p>
<p>A similar rule applies to the estates of those dying within the county of Cornwall. These estates pass to the Duke of Cornwall, who is also the Prince of Wales, Charles’s son, William.</p>
<p>Although many of these unclaimed estates are not large, the aggregate sums received by the duchies are considerable. The Guardian reports that over the past ten years, the Duchy of Lancaster alone <a href="https://www.theguardian.com/uk-news/2023/nov/24/kings-estate-facing-questions-over-14m-in-bona-vacantia-not-donated-to-charity">has collected around £61.8 million</a>. </p>
<p>The Treasury solicitor and the two duchies will advertise for any entitled relatives to come forward, and will make transfers to those entitled under the heirship rules. All three also have a discretion to make payments from the estate to those who may have a legitimate claim on it otherwise than through heirship, particularly under the provisions of the <a href="https://www.legislation.gov.uk/ukpga/1975/63">Inheritance (Provision for Family and Dependants) Act 1975</a>. </p>
<p>These include carers for the deceased person, or cohabitants. Some of the remainder is used for investment and to maintain duchy assets, and the surplus given to charity. </p>
<h2>A controversial change apparently benefits King Charles</h2>
<p>Many people are broadly aware, and broadly satisfied, that if they die without heirs, their property will go to the state in the form of the crown. However, when the Law Commission last consulted on the principles of intestacy and <em>bona vacantia</em> in 2011, some public unease about the point was detected. </p>
<p>A significant minority thought that the rule was anachronistic and that unclaimed assets should be given <a href="https://lawcom.gov.uk/document/intestacy-and-family-provision-claims-on-death-report/">directly to charity</a>. The Law Commission did not take this up, in part because the latest available reports and accounts at that time showed that the net proceeds of <em>bona vacantia</em> in both duchies passed entirely to charity.</p>
<figure class="align-center ">
<img alt="A row of houses in a northern English village next to a bridge." src="https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562968/original/file-20231201-25-gxjwhl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Property in an area of the Duchy of Lancaster.</span>
<span class="attribution"><span class="source">Shutterstock/Fencewood Studio</span></span>
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</figure>
<p>The Guardian’s reporting has now revealed that there was an apparent significant shift in the administration of the Duchy of Lancaster’s funds in 2020. One particularly controversial change has been the alleged use of money to improve historic property within the Duchy’s portfolio, which is then rented out for profit. </p>
<p>The paper has also raised questions about how much of the duchy’s income is currently being paid to charitable causes, as this appears to have dropped. </p>
<p>There is the further question of whether it is fair, or relevant, that the estates of those who happen to die resident in Lancashire or Cornwall should become private assets of the monarch or his heir, while those who die resident elsewhere have their estates passed to the British state more generally. </p>
<p>Whatever the resolution of these issues may be, there is a clear message for those who strongly wish their estates to go to charity and not to the crown: make a will. </p>
<p>All wills can be drafted so that if there are no living heirs left, the estate can be given to a charity of the deceased’s choice as a fallback. Many charities offer will writing services which can help. When it comes to legacies, it’s essential to plan ahead.</p><img src="https://counter.theconversation.com/content/218974/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sheila Hamilton Macdonald does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Legal expert on the obscure law that makes King Charles and Prince Williams the heirs of people who die without wills or close relatives in Lancashire and Cornwall.Sheila Hamilton Macdonald, Senior Lecturer, specialising in Probate, Wills and Land, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2096572023-07-13T12:38:47Z2023-07-13T12:38:47ZWhy a handwritten will found in Aretha Franklin’s couch got R‑E‑S‑P‑E‑C‑T from a jury<figure><img src="https://images.theconversation.com/files/537151/original/file-20230712-17-ho72pg.jpg?ixlib=rb-1.1.0&rect=0%2C62%2C5203%2C2360&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A battle over the superstar's estate landed in court.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ARETHA%20FRANKLIN/d5d3b97af492463db45a54b970a82173?Query=aretha%20franklin&mediaType=text,photo,video,graphic,audio&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1930&currentItemNo=648">Charles Sykes/Invision/AP</a></span></figcaption></figure><p><em>A <a href="https://apnews.com/article/aretha-franklin-will-dispute-d7aba286b05ea0d0e6318ce6abc887d5">handwritten will in a spiral notebook</a> found wedged between couch cushions months after Aretha Franklin’s 2018 death is valid, a jury in Pontiac, Michigan, has decided. The July 11, 2023, verdict ended a yearslong legal dispute among three of the soul singer’s four sons over which of <a href="https://www.npr.org/2019/05/21/725345750/three-wills-found-at-aretha-franklins-home">three informal wills</a> found in her home should take precedence over the others. As a result, the four-page document, drafted in 2014, will now guide how the singer’s multimillion-dollar estate and royalties will be distributed among her heirs.</em></p>
<p><em>The Conversation asked <a href="https://law.rutgers.edu/directory/view/weisbord">Reid Kress Weisbord</a> and <a href="https://scholar.google.com/citations?user=EsYOnywAAAAJ&hl=en&oi=sra">David Horton</a>, two legal scholars who are experts on wills and trusts, to explain what the verdict means and how others can avoid this situation.</em></p>
<h2>Did the informality of these documents matter?</h2>
<p>No U.S. jurisdiction requires a will to be typewritten or professionally drafted by an attorney. Anything written down can <a href="https://www.findlaw.com/forms/resources/estate-planning/last-will-and-testament/what-is-a-valid-will.html">serve as a valid will</a> if the person who created it has sufficient mental capacity, wants the document to serve as a will and satisfies certain technical requirements for signing the document.</p>
<p>Most states do require that at least two witnesses observe the will being signed and then add their own signatures to the will as “<a href="https://legal-dictionary.thefreedictionary.com/attesting+witness">attesting witnesses</a>.” But some states, including Michigan, do not require witness signatures if the <a href="https://www.annarborprobate.com/estate-planning/2022/12/02/is-a-holographic-will-valid-in-michigan/">will was written and signed</a> in the deceased person’s handwriting.</p>
<p>However, when a will is professionally drafted by an attorney and signed by neutral witnesses, the facts surrounding the will’s preparation and execution can be easier to prove in court – most likely reducing legal expenses for heirs.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A finger points to a line of handwritten text." src="https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537172/original/file-20230712-35786-cpcueh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This is one of Aretha Franklin’s handwritten wills that led to legal wrangling.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ArethaFranklinWill/60e9c1d90f1a4784a183bf8ef9c85fbc/photo?boardId=37be9465fcce45d283d5431cccb20a6a&st=boards&mediaType=audio,photo,video,graphic&sortBy=&dateRange=Anytime&totalCount=385&currentItemNo=5">AP Photo/Mike Householder</a></span>
</figcaption>
</figure>
<h2>What matters when there are competing versions of wills?</h2>
<p>Every will contest turns on its own unique facts.</p>
<p>The dispute in Franklin’s estate focused on whether a handwritten document from 2014 was properly signed and, if so, whether she intended for that document to operate as her will.</p>
<p>That document was the most recent of all of Franklin’s potential wills, which <a href="https://executor.org/blog/will-legal-valid/">usually would be the determining factor</a>. But it lacked a traditional complete signature. Instead, there was a smiley face drawn immediately before “Franklin.”</p>
<p>According to <a href="https://casetext.com/case/in-re-estate-of-briggs">long-standing law</a>, any mark intended as a signature is sufficient to validate a will. </p>
<h2>Is this unusual for someone rich and famous?</h2>
<p>About <a href="https://theconversation.com/68-of-americans-do-not-have-a-will-137686">2 in 3 Americans</a> have not formally spelled out in a will what should happen with their estates following their deaths. Those most likely to have wills tend to be over 65 years old, well educated and wealthy.</p>
<p>While it’s somewhat uncommon for someone as <a href="https://www.bbc.com/news/world-us-canada-66158755">rich and famous as Franklin</a> to die without a will, it does happen occasionally. Other good examples include civil rights leader <a href="https://www.learnedlawyeridaho.com/leaving-a-legacy-of-conflict-celebrities-who-died-without-wills-martin-luther-king-jr/">Martin Luther King Jr.</a>, artist <a href="https://www.celebritynetworth.com/articles/entertainment-articles/when-pablo-picasso-died-he-left-behind-billions-of-dollars-worth-of-art-yet-he-left-no-will/">Pablo Picasso</a> and business magnate <a href="https://www.wsj.com/articles/SB10001424052748704416904575502292011174892">Howard Hughes</a>. </p>
<p>Legal wrangling over singer-songwriter <a href="https://www.billboard.com/pro/prince-estate-court-battle-ends-six-years/">Prince’s huge estate</a> took six years to resolve because he didn’t leave a will behind and the musician had no children or spouse when he died in 2016.</p>
<h2>Does this court case set any precedents?</h2>
<p>No. The verdict came from a probate court jury. Because the case was not decided with a ruling from an appellate or another higher court, it <a href="https://www.upcounsel.com/legal-def-precedent">doesn’t set a legal precedent</a>. </p>
<h2>How much can these legal battles cost heirs?</h2>
<p>The attorneys fees in litigation over wills can be hefty. When we studied 443 probate cases from San Francisco between 2014 and 2016, we found that disputes like the one in Franklin’s estate incurred an average of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3805381">about US$17,000 in additional attorneys fees</a>. Cases like Franklin’s, which took several years to resolve, usually cost much more.</p><img src="https://counter.theconversation.com/content/209657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Informal documents can be valid. But when that’s all a rich person leaves behind, the legal costs can get pretty steep.Reid Kress Weisbord, Professor of Law and Judge Norma Shapiro Scholar, Rutgers University - NewarkDavid Horton, Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1863842022-07-13T03:21:20Z2022-07-13T03:21:20ZWhat happens if you die without a will?<p>Actor Chadwick Boseman, star of Marvel’s Black Panther, died in 2020 aged 43 from colon cancer. It came to light last month his estate would be <a href="https://radaronline.com/p/chadwick-boseman-widow-parents-estate-3-million-split-black-panther/">split evenly</a> between his widow and his parents, following a legal process.</p>
<p>Although he knew for some time that he was dying, he did not make a will. This is why his estate (all his money and assets) passed by what’s legally called “intestacy” – the rules governing someone’s estate if they don’t have a will.</p>
<p>Boseman was one of <a href="https://www.caring.com/caregivers/estate-planning/wills-survey">around 66% of Americans</a> who didn’t make a will before he died. </p>
<p>Australians are different. They have one of the highest rates of will-making in the world. For example, in Queensland in 2012, <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198747123.001.0001/acprof-9780198747123-chapter-15">79% of people over 35 had made a will</a> and 54.5% of those over 18 had made one. </p>
<p>It’s possible this is a function of Australia’s high level of home ownership comparative to other countries, and that people often make their first will when they buy their first house.</p>
<p>But here’s what happens if you die without a will in Australia – and why you should make one if you haven’t already.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-families-fight-over-inheritances-and-how-to-avoid-it-177795">Why families fight over inheritances – and how to avoid it</a>
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</p>
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<h2>The law of intestacy</h2>
<p>If you don’t leave a will, then the law of intestacy will apply.</p>
<p>Each state and territory in Australia has rules for intestacy. These set out who is to inherit, and in what shares, when the deceased hasn’t made a will. The rules are based on Western ideas of kinship, derived from English law. They focus on the nuclear family as it descends over time.</p>
<p>Although rules differ in each state, there’s a pattern that puts the spouse first (married, registered partner, de facto, same sex, heterosexual). The spouse gets a significant part – sometimes all – of the estate.</p>
<p>If there’s anything left after the spouse takes their share, then the children, and grandchildren, and so on share the remainder. If there’s no spouse and no children or grandchildren, then the estate may go to parents, then aunts, uncles and cousins. Some states extend this a little, but if none of these relatives survives, the estate goes to the government. </p>
<p>If you make a will, you can decide not only who will take particular parts of your estate, but also who is your “executor” – the person tasked with carrying out your wishes.</p>
<p>You can explain your wishes and trust they will carry them out after they have been granted “probate”. Probate gives them the right to deal with your body and property.</p>
<p>If you die intestate you get no choices – a court will decide who should administer your estate, and appoint someone (the administrator) to do that. This might be the Public Trustee or anyone the court thinks suitable.</p>
<p>The executor or administrator is supposed to pay debts, gather assets, do the last tax return for the deceased and manage the property until it’s clear who will benefit, and then distribute to the beneficiaries. </p>
<figure class="align-center ">
<img alt="People making a will" src="https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/473279/original/file-20220711-45278-wlj7k3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Making a will gives you choices and control over what happens to your money and assets when you die.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>Who’s in the family?</h2>
<p>In intestacy it’s assumed you think about your family in the same way the legal system does.</p>
<p>Intestacy may work very well where property held isn’t very complex, and for people whose idea of family matches the law’s view of family.</p>
<p>But many people in Australia do not, including some immigrants whose ideas of family may be more extended, and many Aboriginal and Torres Strait Islander people whose ideas of family connections may be very different.</p>
<p>Where kinship ideas don’t match, intestacy can be problematic. For example, in many Aboriginal groups, children regard their aunt or uncle as “mother” or “father”. Aunts and uncles often have obligations to help take care of their siblings’ children, who they think of as their own children, according to <a href="https://www.tag.nsw.gov.au/sites/default/files/2021-08/Aboriginal-Wills-Booklet-3rd-Edition-2020_Web%20version.pdf">my research</a> into culturally appropriate will making.</p>
<p>But the intestacy scheme will ignore this. This can create ill-feeling and confusion.</p>
<p>This is why in the Northern Territory, New South Wales and Tasmania it’s possible to use <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2017/1.html?context=1;query=Re%20Wilson">customary law</a> for Aboriginal and Torres Strait Islander people who die without a will.</p>
<h2>You lose choice without a will</h2>
<p>For the rare people whose property consists only of a house held in joint tenancy, a joint bank account and superannuation, you may not need a will because property will pass to the other owner by the mere fact of living longer.</p>
<p>But anyone with more complex property than this needs a will.</p>
<p>Intestacy has no room for individual differences. For example, without a will you cannot set up a special trust for a child who has an intellectual disability, or donate to a charity, or pick out the particular people you wish to get particular things.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/want-to-do-more-for-your-favorite-charity-consider-a-planned-gift-138241">Want to do more for your favorite charity? Consider a planned gift</a>
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</em>
</p>
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<p>Death creates grief and sometimes grief overwhelms good sense and creates greed leading to disputes. Intestacy is a safety net, but where there has been no planning in the form of a will there may be greater grief and confusion because people do not know what to do.</p>
<p>The advantages of a will include that it can smooth the changeover of property from one person to another, and allows the individual to have their own wishes respected.</p><img src="https://counter.theconversation.com/content/186384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Prue Vines received funding from the NSW Trustee and Guardian for research contributing to this article. </span></em></p>Death creates grief and sometimes grief overwhelms good sense and creates greed leading to disputes. Making a will is the best way to smooth the process of transferring your estate once you die.Prue Vines, Professor, Law Faculty, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1735692022-01-05T13:48:22Z2022-01-05T13:48:22ZOnline tools put will-writing in reach for most people – but they’re not the end of the line for producing a legally binding document<figure><img src="https://images.theconversation.com/files/437385/original/file-20211213-13-1k65k5v.jpg?ixlib=rb-1.1.0&rect=0%2C1152%2C2682%2C1579&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Paper copies of wills haven't gone extinct yet, but online estate tools have brought will preparation into the 21st century.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:The_Last_Will_and_Testament_of_C.F.Beyer.1872_and_1876.jpg">Bradshaw79/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The promise of online wills is undeniable. Online programs offer people an easy way to write their wills. Online templates can be completed anywhere, at any time. There is no office appointment, no indiscreet questions from a lawyer about who is getting what. You don’t have to leave home and you don’t even have to get dressed. </p>
<p>I’m a <a href="https://scholar.google.com/citations?user=6kPZNuMAAAAJ&hl=en">law professor</a> who teaches will and trusts, and I have no doubt that online wills are the wave of the future. I bought stock in the online will preparation company LegalZoom when it made its <a href="https://www.cnbc.com/2021/06/30/legalzoom-debuted-up-30percent-ceo-sells-further-push-into-digital-market.html">market debut</a> on June 30, 2021. But, despite my enthusiasm (and hopefully successful investment), online wills aren’t right for everyone, nor are they appropriate in all circumstances. Moreover, it is important to remember that simply filling out an online form doesn’t produce a legally binding will.</p>
<p>What’s great about online wills is the increased ease that they offer, which is significant in terms of making will-writing more palatable to people. Online wills are also important in terms of equity and opportunity. As many as <a href="https://theconversation.com/68-of-americans-do-not-have-a-will-137686">68% of Americans die without a will</a> and, while reasons vary for this stunningly high number, one factor is likely lack of access to legal services. </p>
<p>People contemplating will-writing are understandably deterred by the daunting task of finding the right lawyer and the possible cost of the transaction. Online services like Legal Zoom, US Legal Wills and Nolo’s Quicken WillMaker & Trust pointedly advertise the low cost of their services and offer <a href="https://www.legalzoom.com/personal/estate-planning/last-will-and-testament-overview.html">basic packages</a> for a will starting at around US$90. Other websites, like Rocket Lawyer, advertise <a href="https://www.rocketlawyer.com/family-and-personal/estate-planning/make-a-will/document/last-will-and-testament">free will templates</a>. </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/kCXSZPU8U68?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Wills are about more than just who gets what property.</span></figcaption>
</figure>
<p>Online wills have the potential, therefore, to bring wills and estate planning to populations that might not otherwise have contact with legal services – assuming that the person writing the will has computer and internet access. Similar tools for medical directives and living wills make end-of-life preparations more accessible as well.</p>
<h2>State law is the bottom line</h2>
<p>Increased accessibility, however, is only part of the story. One fundamental problem with online wills is that they are not valid unless they are properly executed according the state probate rules. Simply filling out an online form is not enough to create a valid will. Each state has <a href="https://www.lawserver.com/law/state/virginia/va-code/virginia_code_64-2-403">specific rules</a> for determining whether or not a will has been validly executed. For the most part, these rules require that the will be in writing, signed and witnessed by two people.</p>
<p>These requirements focus on the physical – physical documents and the physical presence of witnesses. The writing and signature requirements generally mean that a person must print out the online will and sign a hard copy, and the witnessing also needs to be done in person. States have begun to consider moving toward electronic wills, spurred on mostly by the new and demanding conditions of physical distancing <a href="https://www.nolo.com/legal-encyclopedia/notarizing-and-witnessing-legal-documents-during-the-coronavirus-crisis.html">brought on by the COVID-19 pandemic</a>.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/YM-1CvIn5yo?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Online will preparation is convenient but usually not enough by itself to complete a legally binding document.</span></figcaption>
</figure>
<p>Some states adopted <a href="https://www.actec.org/resources/emergency-remote-notarization-and-witnessing-orders/">temporary emergency orders</a> authorizing electronic wills during the first phases of the pandemic, but most states have yet to fully adopt electronic wills or <a href="https://frostbrowntodd.com/when-and-where-can-i-sign-my-will-with-remote-witnessing-estate-planning-lessons-learned-from-the-pandemic/">remote witnessing</a>. Something to check, then, when considering an online will is whether or not the program or template is state specific and clearly explains what further steps will be needed to validly execute the will after the document has been prepared online. </p>
<h2>Covering the what-ifs</h2>
<p>Something else worth investigating for those considering online wills is what kind of questionnaire the program provides. Estate planning, as I tell my students all the time, is about matching up your things with the people you want to inherit them. </p>
<p>Good will-drafting is also, however, about imagining worst-case scenarios, thinking three steps ahead and writing <a href="https://www.freewill.com/learn/what-is-a-contingent-beneficiary">contingency plans</a> into the document. Who gets that ugly landscape painting if Aunt Bridget is already dead when you die? Does Cousin Jamal get any replacement value if the stock he was supposed to receive through the will was sold? What happens if the family members who were supposed to inherit the bulk of the estate all die in an unexpected avalanche during a ski vacation? </p>
<p>Accordingly, those in the market for an online will should make sure that the online program offers a detailed questionnaire to guide them through the strange and sometimes gruesome world of unlikely but incredibly important “what-if” scenarios. </p>
<h2>Things can get complicated</h2>
<p>Finally, while it might be obvious, online will templates are best for simple estates. If you have real property in more than one state, if you have a complicated family structure involving multiple marriages and sets of children, if you have a family business that will be passed down – in all these situations you might consider consulting an estate planner. That person can give you advice on how to deal with these more legally complicated and financially sophisticated situations that online will templates are not necessarily set up to accommodate.</p>
<p>[<em>Over 140,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-140ksignup">Sign up today</a>.]</p>
<p>Ultimately, then, you may need to get out of bed to have your will witnessed, and you may need to leave your house to consult with a lawyer about complicated assets. But the good news is that with online will-writing programs you can do a lot of the groundwork at home, drinking coffee in your pajamas.</p><img src="https://counter.theconversation.com/content/173569/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Allison Anna Tait owns a small number of shares in Legal Zoom</span></em></p>Online tools promise to democratize estate planning and will preparation, but users are responsible for complying with state laws.Allison Anna Tait, Professor of Law, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1437552020-08-25T03:12:51Z2020-08-25T03:12:51ZDigging your own digital grave: how should you manage the data you leave behind?<figure><img src="https://images.theconversation.com/files/351126/original/file-20200804-16-15tlpuk.png?ixlib=rb-1.1.0&rect=0%2C27%2C1024%2C706&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Arash Shaghaghi</span>, <span class="license">Author provided</span></span></figcaption></figure><p>Throughout our lifetimes we consume, collate, curate, host and produce a staggering quantity of data – some by our own hand, some by others on our behalf, and some without our knowledge or consent.</p>
<p>Collectively, our “digital footprints” represent who we are and who we <em>were</em>. Our digital legacies are immortal and can impact those we leave behind. </p>
<p>Many of us take steps to secure our privacy while we’re alive, but there’s mounting evidence that we should be equally concerned about the privacy and security risks of our “data after death”.</p>
<h2>Reincarnation as data</h2>
<p>It might be tempting to think of data after death as inconsequential – after all, we’ll no longer be around to worry about it. However, Facebook and Instagram both support static “memorial” <a href="https://www.facebook.com/help/1506822589577997">accounts</a> for the deceased. We also know memorial pages can play an important part of the <a href="https://www.tandfonline.com/doi/full/10.1080/07481187.2019.1626937">grieving process</a>.</p>
<p>Facebook has around 300 million accounts <a href="https://www.theloop.ca/dead-facebook-users-will-soon-outnumber-the-living/">belonging to the deceased</a>. <a href="https://journals.sagepub.com/doi/10.1177/2053951719842540">Research</a> suggests this figure could rise into the <a href="https://www.theguardian.com/technology/2019/apr/29/facebook-dead-users-2100-oxford">billions</a> within decades.</p>
<p>However, these platforms’ terms of service don’t address how the data of deceased users is retained, processed or shared.</p>
<p>There is now even more cause for concern with the emergence of platforms like <a href="https://theconversation.com/china-could-be-using-tiktok-to-spy-on-australians-but-banning-it-isnt-a-simple-fix-142157">TikTok</a> and Likee, which have both proven to be particularly liable to expose the personal lives of millions online.</p>
<p>This raises important <a href="http://bigdatasoc.blogspot.com/2019/05/are-we-outsourcing-curation-of-history.html">questions</a>, such as: </p>
<ul>
<li><p>what are platforms such as Facebook doing with the data after death they collect?</p></li>
<li><p>is it ever deleted?</p></li>
<li><p>could it be sold or otherwise monetised? </p></li>
<li><p>what assurances do we have our data will continue to be hosted by those providers after death?</p></li>
<li><p>if not, who will be able to access and manage our data in the future? </p></li>
</ul>
<p>In 2012, a teenage girl died after being hit by a subway train in Berlin. Her parents had her Facebook credentials and wanted to access her account to determine whether she had committed suicide. <a href="https://www.theguardian.com/world/2018/jul/12/facebook-told-grant-grieving-mother-access-daughters-account">After six years</a> of legal battles, the parents were awarded a court order and finally given access to their child’s “memorial” Facebook account data.</p>
<h2>We all have skeletons in the closet</h2>
<p>COVID-19 has completely changed our <a href="https://www.forbes.com/sites/markbeech/2020/03/25/covid-19-pushes-up-internet-use-70-streaming-more-than-12-first-figures-reveal/#54b01d483104">internet use patterns</a>. The unplanned transition to working from home has blurred the boundaries between our professional and personal lives.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-some-governments-fear-even-teens-on-tiktok-140389">Why some governments fear even teens on TikTok</a>
</strong>
</em>
</p>
<hr>
<p>Consequently, personal information is now more likely to be exchanged over services such as Microsoft Teams. Many users may choose to store confidential information on personal cloud services for the sake of convenience.</p>
<p><a href="https://www.nytimes.com/interactive/2020/04/07/technology/coronavirus-internet-use.html">With these changes in behaviour</a>, new vulnerabilities have emerged. When a user dies, it’s now more important than ever personal and otherwise sensitive information is automatically identified and secured. </p>
<figure class="align-center ">
<img alt="Hands typing on a laptop" src="https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354507/original/file-20200825-20-121g2bd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Working remotely or in networked teams can make data less secure.</span>
<span class="attribution"><span class="source">John Schnobrich/Unsplash</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Colleagues of the departed may forget to revoke access credentials, which can then be used to <a href="https://www.shrm.org/hr-today/news/hr-news/pages/ghost-employees-spirit-away-money-from-employers.aspx">steal intellectual property</a>. Embarrassing email exchanges that belonged to the dead can damage reputations, and sensitive information can negatively affect entire businesses and potentially ruin lives. </p>
<p>In 2016, a Twitter account belonging to the well-known US journalist David Carr was <a href="https://mashable.com/2016/05/19/david-carr-twitter-hack/">hacked by a sexting bot</a> a year after his death. Earlier, in 2010, 16-year-old vlogger Esther Earl died of cancer before she could cancel a tweet she had <a href="https://www.theguardian.com/tv-and-radio/2019/jun/02/digital-legacy-control-online-identities-when-we-die">scheduled for release</a> that left friends and family in shock.</p>
<h2>The need for data management after death</h2>
<p>Most Australians <a href="https://theconversation.com/facebooks-accidental-death-of-users-reminds-us-to-plan-for-digital-death-68745">don’t have a conventional will</a>, so it’s not surprising the digital equivalent hasn’t gained traction.</p>
<p>In collaboration with the <a href="https://www.aisa.org.au/">Australian Information Security Association</a> (AISA), we surveyed about 200 AISA members to assess their awareness of digital wills and associated Australian regulations that protect users’ security and privacy. Our survey results confirmed that even key decision makers in the field and cybersecurity thought leaders had not considered or prepared for posthumous data risks.</p>
<p>But raising awareness is only part of the battle. There are no national regulatory bodies, rules or standards for service providers to follow when managing the data of the deceased. And in Australia there are no laws or regulations <a href="https://hallandwilcox.com.au/thinking/what-happens-to-your-digital-wealth-on-death-and-incapacity/">imposing requirements to minimise the risks of data after death</a>.</p>
<p>We need a solution that can resolve issues ranging from moral quandaries about <a href="https://theconversation.com/our-healthcare-records-outlive-us-its-time-to-decide-what-happens-to-the-data-once-were-gone-81325">posthumous medical data</a>, to privacy concerns about accessing past digital correspondences. </p>
<p>To be effective, such a solution will require legal and policy recommendations, guidelines and technological adaptations for providers, decision-makers and users. Each aspect will need to be sensitive to context and accommodate for grief and mourning among individuals and organisations. For example, there is often a period of compassionate leave available for employees when members of their immediate family pass away. </p>
<p>Some processes meant to manage data after death already exist, but they need more development. Technological solutions for data after death proposed thus far fall into the category known as <a href="http://www.rogerclarke.com/DV/PITsPETs.html">privacy-enhancing technologies</a> - tools meant to protect users’ privacy. </p>
<p>Users have been reluctant and slow to adopt privacy enhancing technologies. In part, this is because they don’t allow individuals the ability to control how they manage their privacy risks.</p><img src="https://counter.theconversation.com/content/143755/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Patrick Scolyer-Gray is an Associate Research Fellow at Deakin University, where he is a member of the Centre for Cyber Security Research and Innovation (CSRI). This work was created independently and bears not relationship to Pathbreaker Pty Ltd - the think tank-consultancy of which he is the CEO.</span></em></p><p class="fine-print"><em><span>Dr Arash Shaghaghi is a Lecturer in Cybersecurity at Deakin University and a Visiting Fellow at UNSW Sydney. At Deakin, he is a member of Deakin University's Centre for Cyber Security Research and Innovation (CSRI) and leads the Data After Death (DaD) project.
</span></em></p><p class="fine-print"><em><span>Debi Ashenden is a Professor of Cyber Security at Deakin University (Australia) and the University of Portsmouth (UK). At Deakin University she is a member of the Centre for Cyber Security Research and Innovation (CSRI).</span></em></p>What happens to our online data after we die? From memorial Facebook pages to password security, a project at Deakin University is exploring the pitfalls and possibilities of “data after death”.Patrick Scolyer-Gray, Research Fellow, Cyber Security, Deakin UniversityArash Shaghaghi, Lecturer, Cybersecurity, Deakin UniversityDebi Ashenden, Professor of Cyber Security and Human Behaviour, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1382412020-05-26T12:16:57Z2020-05-26T12:16:57ZWant to do more for your favorite charity? Consider a planned gift<figure><img src="https://images.theconversation.com/files/336568/original/file-20200520-152288-2a7qg5.jpg?ixlib=rb-1.1.0&rect=830%2C75%2C2317%2C1486&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Joan Kroc gave much to charity during her life and in her will after inheriting the McDonald's fortune.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-AP-A-PA-USA-APHS469527-Kroc-Names-New-Padres-President/5e6f377c8a234cbab8c595019fdf9132/99/0">AP Photo/Bill Cramer</a></span></figcaption></figure><p>The coronavirus pandemic has led many Americans to <a href="https://www.theguardian.com/science/blog/2017/jul/25/we-fear-death-but-what-if-dying-isnt-as-bad-as-we-think">consider their own mortality</a> and <a href="https://abcnews.go.com/Health/coronavirus-leads-surge-wills-thinking-mortality/story?id=69874540">plan for the future</a>.</p>
<p>One sign of this trend: the number of people using <a href="https://www.cnbc.com/2020/03/25/coronavirus-pandemic-triggers-rush-by-americans-to-make-online-wills.html">will-writing websites</a> surged by as much as 200% in late March, when the vast majority of states ordered social distancing measures.</p>
<p>As a <a href="https://scholar.google.com/citations?hl=en&user=tu70lmIAAAAJ">scholar of philanthropy who used to raise money for nonprofits</a>, I see an opportunity even at this difficult moment. Few Americans consider leaving money to charity when they declare who should inherit their assets after they die. </p>
<p>At the same time, many nonprofits face a <a href="https://www.bostonglobe.com/2020/05/12/business/galas-postponed-or-going-virtual-nonprofits-see-big-drop-fund-raising-while-demand-services-rise/">dire situation</a> as a result of the pandemic. Demand for their services is growing while in many instances their revenue is plummeting. In the case of <a href="https://www.bostonglobe.com/2020/05/12/business/galas-postponed-or-going-virtual-nonprofits-see-big-drop-fund-raising-while-demand-services-rise/">shuttered museums, symphonies and theaters</a>, they are also missing out on money from ticket sales that they need to survive.</p>
<h2>Few wills</h2>
<p>Only <a href="https://theconversation.com/68-of-americans-do-not-have-a-will-137686">32% of Americans have a will</a>, according to recent estimates, down from <a href="https://www.caring.com/caregivers/estate-planning/wills-survey">42% a few years ago</a>. </p>
<p>But the share of the population planning to leave money to charity is far smaller: only an estimated <a href="https://www.slideshare.net/rnja8c/charitable-bequest-demographics-33283226">5% of Americans</a>. This is a tiny sliver of the people who support nonprofits in a given year. According to a recent Gallup poll, some <a href="https://news.gallup.com/poll/310880/percentage-americans-donating-charity-new-low.aspx">73% of Americans</a> made a charitable donation to a religious institution or another charity last year.</p>
<p>The most common way to make what is technically called a “<a href="https://www.forbes.com/sites/russalanprince/2016/07/05/what-is-planned-giving/#7018945548a9">planned gift</a>” is <a href="https://www.fidelitycharitable.org/guidance/philanthropy/what-are-bequests.html">a bequest</a> – a donation to a nonprofit noted in someone’s will. While the intention is expressed during the person’s lifetime, charities get the money or other assets after they’ve died.</p>
<p>Even though the numbers participating are small, bequest giving has quadrupled to nearly $40 billion annually over the past 40 years, according to the annual <a href="https://givingusa.org/giving-usa-2019-americans-gave-427-71-billion-to-charity-in-2018-amid-complex-year-for-charitable-giving/">Giving USA report</a>.</p>
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<p>That’s almost 10% of <a href="https://theconversation.com/american-giving-lost-some-ground-in-2018-amid-tax-changes-and-stock-market-losses-118892">all the money going to charity</a> each year. But I see plenty of room for growth.</p>
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<h2>Many ways to give</h2>
<p>Sometimes these donations <a href="https://www.nytimes.com/2018/05/06/nyregion/secretary-fortune-donates.html">are unexpected</a>. But many donors prefer to <a href="https://www.latimes.com/entertainment/arts/culture/la-et-cm-jerry-perenchio-lacma-michael-govan-news-conference-20141106-story.html">personally notify</a> the nonprofits they’ve selected. </p>
<p>It’s hard to get precise data on these gifts, because the IRS doesn’t collect it except from the estates of the wealthiest Americans.</p>
<p>There are other ways to leave money to charity after death besides bequest clauses in wills. All or part of an <a href="https://financial-dictionary.thefreedictionary.com/IRA">Individual Retirement Account</a>, or IRA, as well as 401(k)s and other employer-sponsored retirement plans can be left to charity. The same goes for <a href="https://www.forbes.com/sites/russalanprince/2016/07/05/what-is-planned-giving/#6b8c4a2648a9">many other kinds of assets</a>, including life insurance policies, trusts, real estate and tangible personal property, like artwork.</p>
<h2>A charitable opportunity</h2>
<p>My research shows that writing a will, especially when it calls for leaving money to a charity, actually <a href="https://givingusa.org/just-released-special-report-leaving-a-legacy-a-new-look-at-planned-giving-donors/">puts peoples’ minds at ease</a>. It’s a way people make meaning of their lives.</p>
<p>“I’ve been able to express my appreciation for the organization and my commitment to the cause beyond my time here,” is how one donor I’ll call Diane put it during our interview about her motivations for making a planned gift. </p>
<p>In a <a href="https://givingusa.org/just-released-special-report-leaving-a-legacy-a-new-look-at-planned-giving-donors/">national study of planned gift donors</a> last year, my research team and I found that the average age for writing a first will is 44 years old and that over half of the donors surveyed for the study established their first planned gift at the same time as their first will.</p>
<p>For those who make gifts, it’s not a difficult process. A total of 68% of the 862 donors we surveyed said making their planned gift was “very” or “somewhat easy.”</p>
<h2>Not just for the 1%</h2>
<p>Many people think that writing a will is only for the very rich, but really <a href="https://www.marketwatch.com/story/why-wills-arent-just-for-the-wealthy-2015-03-17">anyone with a family, home, or bank account should have one</a>. You don’t have to be very rich to make bequests. Some <a href="https://ssir.org/articles/entry/philanthropys_missing_trillions">middle class donors</a> write charitable gifts into their wills that exceed $100,000. </p>
<p>For many donors, planned giving enables them to make a larger gift after death than their finances would allow them to do during their life.</p>
<p>Based on my team’s research, we know that donors who make planned gifts are often long-time supporters, have worked or volunteered for the organization they’re supporting and believe in its mission. And because nearly 92% of the people we surveyed consulted an attorney when they wrote their will, it’s important that lawyers and financial planners at least raise the topic.</p>
<p>For nonprofits, estate gifts often come from those with long histories with the organization. On average, donors we surveyed had been supporting the organization that would receive their largest planned gift for 20 years.</p>
<p>The coronavirus pandemic and resulting financial crisis mean that <a href="https://www.marketwatch.com/story/why-coronavirus-could-devastate-charities-even-more-than-the-great-recession-did-2020-04-07">many people will have more trouble than usual giving to charity</a>. I believe that when anyone drafts or revises their wills, it’s important that they discuss how to support causes they care about after their death with their lawyers and loved ones.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/138241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth J. Dale has received funding from The Giving USA Foundation for her planned giving research as well as the Bill & Melinda Gates Foundation via Indiana University and the Ford Foundation for other research on philanthropy. The views expressed in this essay are strictly my own and do not reflect policy stances of Seattle University or The Giving USA Foundation.</span></em></p>Far fewer Americans include plans for bequests to nonprofits in their wills than give to charity on a regular basis. The pandemic could be a good reason to change that.Elizabeth J. Dale, Assistant Professor of Nonprofit Leadership, Seattle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1376862020-05-19T12:13:23Z2020-05-19T12:13:23Z68% of Americans do not have a will<figure><img src="https://images.theconversation.com/files/333232/original/file-20200506-49558-1xb637r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">More and more states are allowing people to use Zoom to finish their wills.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/social-relations-at-covid19-social-distancing-times-royalty-free-image/1218176430?adppopup=true">LeoPatrizi/Getty Images</a></span></figcaption></figure><figure class="align-left ">
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<p><em><a href="https://theconversation.com/us/search?utf8=%E2%9C%93&q=significant+figures">Significant Figures</a> is a series from The Conversation in which scholars explain an important number in the news.</em></p>
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<p>As the coronavirus pandemic sweeps through the country, more people may find themselves in <a href="https://ssrn.com/abstract=3572097">urgent need of an estate plan</a>.</p>
<p>But according to one recent survey, 68% of Americans <a href="https://www.caring.com/caregivers/estate-planning/wills-survey">do not have a will</a>.</p>
<p><a href="https://law.rutgers.edu/bio/weisbord/cv">We are</a> <a href="https://law.ucdavis.edu/faculty/horton/">law professors</a> who teach and research trusts and estates. We <a href="http://dx.doi.org/10.2139/ssrn.3572097">recently studied</a> some of the estate planning impacts of the coronavirus and concluded that, in many states, the law is not prepared to address the sudden spike in demand for self-made wills.</p>
<h2>Dying without a will</h2>
<p>The downsides of dying “intestate” – without a will – are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1978559">well documented</a>. Intestacy laws generally distribute property at death to <a href="https://estate.findlaw.com/planning-an-estate/understanding-intestacy-if-you-die-without-an-estate-plan.html">the surviving spouse or descendants</a>, a plan that is not necessarily suitable for unmarried couples and other nontraditional families. </p>
<p>To avoid intestacy, people may create a will by complying with the requirements of the “Wills Act,” law dating back to an <a href="https://www.british-history.ac.uk/statutes-realm/vol5/pp839-842">English statute from 1677</a>. A person who creates a will, called a “testator,” must sign the will or acknowledge a previously made signature in front of two witnesses who are present at the same time. Then, <a href="http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9">the witnesses also must sign the will</a>. </p>
<p>Many states discourage people from writing their own wills by insisting on strict compliance with the Wills Act. For example, courts have refused to enforce documents that the testator apparently <a href="https://law.justia.com/cases/west-virginia/supreme-court/2013/12-0365.html">forgot to sign</a>, instruments signed by <a href="https://www.nytimes.com/2016/10/24/nyregion/a-brownstone-and-the-bitter-fight-to-inherit-it.html">one witness instead of two</a> and documents signed by witnesses who only heard the testator acknowledge his signature <a href="https://www.courtlistener.com/opinion/2604102/matter-of-estate-of-mcgurrin/">over the telephone</a>. </p>
<p>Public health crises, like the current pandemic, pose additional obstacles. Stay-at-home orders and social distancing can make it impossible to find two witnesses, especially for people who are living alone.</p>
<p><a href="https://law.justia.com/cases/wyoming/supreme-court/1983/121177.html">Judges have historically required</a> witnesses to be physically present for the testator’s signature, so traditional law regards videoconferencing methods as nonstarters. </p>
<h2>Wills in the time of coronavirus</h2>
<p>Some American jurisdictions, however, have relaxed these formalities.</p>
<p>About <a href="https://info.legalzoom.com/article/states-where-holographic-wills-are-legal">half the states</a> – including California, New Jersey, Pennsylvania, Texas and Virginia – allow testators to make holographic wills without witnesses. Instead, holographs must be entirely in the testator’s handwriting and signed by the testator. However, empirical research shows that handwritten wills are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476367">disputed in court more frequently</a> than formal wills drafted by an attorney. </p>
<p>Additionally, 11 states have adopted a reform known as <a href="https://pdfs.semanticscholar.org/a2b7/0fdddc251ba33f3ced259f85dbf0cb2c1af5.pdf">harmless error</a>. This rule allows a judge to enforce a writing that does not comply with the Wills Act if there is strong evidence that the testator intended it to be his or her will.</p>
<p>This safety valve reassures testators who lack access to professional advice that a minor misstep will not doom their estate planning efforts. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3006710">Empirical evidence</a> suggests that the rule is not a major source of conflict or litigation.</p>
<p>However, because formal wills remain the only option in about half of the states, lawmakers have responded to the current pandemic by issuing <a href="https://www.actec.org/resources/emergency-remote-notarization-and-witnessing-orders/?utm_source=Informz&utm_medium=Email&utm_campaign=ACTEC&_zs=jFpAX&_zl=JKd32">emergency orders</a> to permit remote witnessing by video communication.</p>
<p>These orders implement ideas from the <a href="https://www.uniformlaws.org/committees/community-home?communitykey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71&tab=groupdetails">Uniform Electronic Wills Act</a>, model legislation introduced in 2019 but not yet adopted by any state. One of COVID-19’s lasting legacies might be bringing the law of wills into the 21st century, as states gain experience with electronic wills and ultimately enact permanent laws to permit them after the pandemic.</p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/137686/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Dying without a will can cause all sorts of problems for families.Reid Kress Weisbord, Professor of Law and Judge Norma Shapiro Scholar, Rutgers University - NewarkDavid Horton, Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1280562020-02-12T19:14:23Z2020-02-12T19:14:23ZAn unsent SMS, a message on a tractor, a poem: the courts say a valid will can take many forms<figure><img src="https://images.theconversation.com/files/311783/original/file-20200124-81336-1qpunhj.jpg?ixlib=rb-1.1.0&rect=0%2C14%2C2392%2C1580&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In 1948, as Cecil George Harris lay dying after a tractor accident, he scratched a final message into the vehicle's fender.</span> <span class="attribution"><span class="source">illustration supplied by: Impact Studios/Dinalie Dabarera.</span></span></figcaption></figure><p>When a man died by suicide in 2016, a friend found an unsent SMS on his phone:</p>
<blockquote>
<p>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</p>
</blockquote>
<p>Following a dispute between the man’s widow and his brother and nephew, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2017/220.html">Supreme Court of Queensland</a> decided the message was a valid will. </p>
<p>The case represents a growing body of legal decisions reflecting how the digital age is challenging the courts.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/five-things-to-do-before-you-die-because-planning-your-eventual-demise-takes-preparation-122296">Five things to do before you die – because planning your eventual demise takes preparation</a>
</strong>
</em>
</p>
<hr>
<h2>The changing definition of the word ‘document’</h2>
<p>The courts have had to consider whether <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2015/9.html">DVDs</a> and <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/1107.html?context=1;query=wai%20fun%20chan;mask_path=au/cases/nsw/NSWSC">digital videos</a> , <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2013/322.html">iPhone notes</a> , <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2012/594.html">Microsoft Word documents</a> , <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/1098.html?context=1;query=currie;mask_path=au/cases/nsw/NSWSC">encrypted computer files</a> and other digital artefacts count at valid wills or amendments. </p>
<iframe src="https://webplayer.whooshkaa.com/episode/518815?theme=light&visual=true&enable-volume=true" height="190" width="100%" scrolling="no" frameborder="0" allow="autoplay"></iframe>
<p>In the UK, the Law Commission is reviewing the law of wills to decide whether it should reflect the ubiquity of <a href="https://www.lawcom.gov.uk/project/wills/">digital technologies</a>. </p>
<p>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.</p>
<p>In law, documents – more than witnesses or physical objects – have become the most important form of evidence. </p>
<p>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. </p>
<p>What we understand as a “document” has expanded to include a potentially limitless range of digital forms and devices.</p>
<p>Challenges abound. Digital documents are long, ubiquitous, intangible, difficult to authenticate, easy to duplicate and modify. They sometimes bring more questions than answers.</p>
<h2>The case of the unsent SMS</h2>
<p>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. <em>Informal</em> 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”).</p>
<p>It identified most of his assets, included clear wishes about their distribution, provided a pin code and gave instructions about his ashes. </p>
<p>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? </p>
<p>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.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A court might look for clues wherever possible - even in the deceased draft messages folder.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>The case of the tractor fender will</h2>
<p>Courts have had to consider whether an <a href="https://www.cambridge.org/core/journals/cambridge-law-journal/article/willseamans-willwriting-on-eggshellwills-act-1837-1-vict-c-26-s-11/DDA23B1767D1C580E848A08209EFD10A">eggshell</a> , a tractor fender, <a href="https://latimes.newspapers.com/image/380273395/?terms=recluse%27s%2Bhoard%2Bclaimed">a petticoat hem </a>, <a href="http://www7.austlii.edu.au/cgi-bin/LawCite?cit=%281988%29%2053%20SASR%20221">graffiti on a wall </a>, and <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2007/1271.html">a</a> <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2008/223.html">poem</a> might be valid wills.</p>
<p>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. </p>
<p>Two of his curious neighbours went to examine Harris’ stricken tractor and found that message he’d scratched into the paint on the fender: </p>
<blockquote>
<p>In case I die in this mess I leave all to the wife. Cecil Geo. Harris</p>
</blockquote>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/D_lqmrz_dLQ?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">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.</span></figcaption>
</figure>
<p>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 <a href="https://ocnarchives.usask.ca/09-jan-23/see_what_we_found.php">display</a> in the library of the University of Saskatchewan law school.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/facebooks-accidental-death-of-users-reminds-us-to-plan-for-digital-death-68745">Facebook's accidental 'death' of users reminds us to plan for digital death</a>
</strong>
</em>
</p>
<hr>
<h2>What would the deceased have wanted?</h2>
<p>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. </p>
<p>Probate courts are required to walk into this emotional minefield, and ask: what would the deceased have wanted?</p>
<p>When a deceased person hasn’t left a will, or they’ve left one that’s deficient, the court looks for clues. </p>
<p>And, as history tells us, the courts have often acted with considerable sensitivity and flexibility in trying to do justice to the dead.</p>
<hr>
<p><em>If this article has raised issues for you, or if you’re concerned about someone you know, call Lifeline on 13 11 14.</em></p>
<hr>
<p><em><a href="https://historylab.net/s3ep1-in-case-i-die-in-this-mess/">In Case I Die In This Mess</a> was made by <a href="https://www.uts.edu.au/partners-and-community/initiatives/impact-studios/about-us">Impact Studios</a> 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 <a href="https://historylab.net/">History Lab</a> podcast.</em></p><img src="https://counter.theconversation.com/content/128056/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katherine Biber receives funding from the Australian Research Council. She serves on the UTS Branch Committee of the NTEU.
</span></em></p>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. They’ve shown surprising flexibility in judgment.Katherine Biber, Professor of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1222962019-08-29T12:05:02Z2019-08-29T12:05:02ZFive things to do before you die – because planning your eventual demise takes preparation<figure><img src="https://images.theconversation.com/files/289862/original/file-20190828-184207-1w6r0rq.jpg?ixlib=rb-1.1.0&rect=438%2C34%2C4112%2C3016&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/grandmother-portrait-set-studio-concepts-about-797669914">oneinchpunch/ Shutterstock</a></span></figcaption></figure><p>Many people who are struck with sudden, progressive or terminal illness are <a href="https://theconversation.com/why-are-patients-in-permanent-comas-routinely-kept-alive-43365">kept alive mechanically</a>, while families and doctors make decisions about treatment. As a researcher in medical law, particularly end-of-life decision-making, I have seen how this can become a minefield of legal and ethical problems. </p>
<p>UK law allows people to plan in advance of any debilitating illness, and thus have some control over future treatment. This is known as “<a href="https://www.nhs.uk/conditions/end-of-life-care/advance-decision-to-refuse-treatment/">advance decisions</a>”. While these laws are in place, research shows the <a href="https://rm.coe.int/cdcj-2017-2e-final-rapport-vs-21-06-2018/16808b64ae">majority of people disregard or defer the discussions</a> primarily because they do not know how to raise them, or what to expect.</p>
<p>While planning for your eventual demise probably sounds as fun as pulling teeth, it can be empowering. Following from <a href="https://pure.hud.ac.uk/en/publications/advance-directives-rethinking-regulation-autonomy-amp-healthcare-">my recent book</a>, here are five tips for how you can use the law to help you plan for what you want in the future – and make your voice heard when you may no longer have one.</p>
<h2>1. Gather information from experts</h2>
<p>First, you must think, gather information and talk to experts about how life can unfold in the case of progressive illness. This is important whether you are well but thinking about future incapacity, or whether you have actually been <a href="https://www.4pb.com/case-detail/re-ak-medical-treatment-consent/">diagnosed with illness</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289864/original/file-20190828-184234-1scput6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">You should talk to someone who has expertise in both medicine and law in crafting your advance directives.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/1172374675?src=-1-2&size=huge_jpg">Billion Photos/Shutterstock</a></span>
</figcaption>
</figure>
<p>A solicitor with expertise in advance directives can help you understand important laws, such as those that dictate when a person has <a href="https://www.legislation.gov.uk/ukpga/2005/9/contents">sufficient “mental capacity”</a> to make lawful decisions. Lawyers can help you draft your will, and advise on how to protect or pass on your estate – including <a href="https://www.gov.uk/inheritance-tax">hidden costs</a>. They can also help you <a href="https://www.gov.uk/power-of-attorney">nominate someone</a> to make medical decisions for you when you become incapacitated, and decide the limits of their power. Do not just assume that your family members automatically have the power to decide for you legally.</p>
<p>If you are ill, ask a doctor to inform you how your condition will progress so you can decide how you will deal with future events. For example, with dementia and other progressive illnesses, you must consider what quality of life you would tolerate. Similarly, in the case of pain, what treatment you would accept or refuse?</p>
<p>Think big picture about your future life. Would you trade quantity of life for quality, opting for less time but with better quality of life?</p>
<h2>2. Setting your decisions in stone</h2>
<p>Now you have made some important decisions, the next step is about making these decisions clear in the right way, to the right people, and at the right time.</p>
<p>I have <a href="https://www.springer.com/gp/book/9783030009755#aboutBook">documented many cases</a> across England and Wales where advance directives are disputed because they are invalid or inapplicable and there is a dispute about whether they are still legally able to make decisions. Considering your health, you may want to get a <a href="https://www.bma.org.uk/advice/employment/ethics/mental-capacity/assessing-mental-capacity">formal assessment</a> of your mental state and ability to make decisions. You should record any conversations you have in writing. Documents that show you have been supported (by friends, family or professionals) in your decision-making boost the validity of your choices, <a href="https://brill.com/view/journals/ejhl/25/1/article-p24_24.xml?lang=en">making them more binding</a> for healthcare professionals.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289869/original/file-20190828-184222-1fvxjt7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A written record can help provide legal proof of your decisions.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/asian-woman-patient-working-computers-on-1387990790">photo DDD/Shutterstock</a></span>
</figcaption>
</figure>
<p>Legally, just revealing your treatment preferences to your doctor or friends <a href="https://swarb.co.uk/w-healthcare-nhs-trust-v-kh-ca-17-sep-2004/">is not enough</a>. Writing things down is important, though never easy. Ask family or friends to support you in this process. If a loved one is aware of the choices you have made they are less likely to object to your medical decisions because they have been part of the decision process.</p>
<h2>3. Update when your situation changes</h2>
<p>Many people are caught out when their <a href="https://compassionindying.org.uk/making-decisions-and-planning-your-care/planning-ahead/advance-decision-living-will/review-update/">personal situation changes</a>, but they have failed to update their advance directives to reflect this – such as changing romantic relationships. Family conflict by your bedside is the last thing you want. Even if your circumstances are the same, regularly update to avoid “what was I thinking?” moments when it’s too late.</p>
<h2>4. Make sure it gets found</h2>
<p>Inform your family, doctors and lawyers what your advance directives are <em>and</em> where to find them. If the right people don’t have access to your directives, they are useless. In a recent example, the family of a Warwickshire woman was granted a £45,000 payout after she was <a href="https://www.bbc.co.uk/news/uk-england-coventry-warwickshire-42240148">kept alive for 22 months against her will</a> – as the relevant documents had been misplaced.</p>
<h2>5. Don’t forget your online life</h2>
<p>Discussions on social media about how you wish to spend your twilight days may help as <a href="https://brill.com/view/journals/ejhl/25/1/article-p24_24.xml?lang=en">supporting information</a> to ensure the wishes in your advance directives are strengthened. You should also think about who you want to be granted (or denied) access to your online accounts and social media after your death. Streamlining this process, you can now <a href="https://www.theatlantic.com/technology/archive/2013/04/google-death-a-tool-to-take-care-of-your-gmail-when-youre-gone/274934/">create a social media will</a> online.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/289866/original/file-20190828-184248-2l7nf9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Someone will probably end up with your smartphone - better make sure it’s the right person.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTU2NzAxNzQyNCwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfMzYzODM0OTIzIiwiayI6InBob3RvLzM2MzgzNDkyMy9odWdlLmpwZyIsIm0iOjEsImQiOiJzaHV0dGVyc3RvY2stbWVkaWEifSwiMVJFUFpPVW9tdGJFWlZxRkdyeWQwMXlJRWZZIl0%2Fshutterstock_363834923.jpg&pi=33421636&m=363834923">Nicoleta Ionescu/ Shutterstock</a></span>
</figcaption>
</figure>
<p>Drafting an advance directive is an exercise in liberty. It allows our beliefs and preferences to be made clear even when we are physically or mentally unable to express them ourselves. An advance directive is our voice when we no longer have one. Use your voice wisely.</p><img src="https://counter.theconversation.com/content/122296/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hui Yun Chan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Formally planning ahead in case of illness or injury can provide you a voice when you may no longer have one - here’s our guideHui Yun Chan, Senior Lecturer in Law, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1071552018-11-26T15:31:56Z2018-11-26T15:31:56ZFrom Prince Charles and his mother down, why Britain finds it hard to talk about death<p>Celebrations of Prince Charles’s 70th birthday <a href="https://www.telegraph.co.uk/royal-family/2018/11/14/queen-leads-tributes-prince-charles-glittering-palace-party/">featured much talk of succession</a> and his 66 years of preparation to become king. But there was hardly any explicit reference to the death of the existing monarch as a requirement for that transition of power to take place. </p>
<p>Instead, the Queen’s future death was skirted around with reference to the “passing” of the monarch and more emphasis on logistics – how her son (and the public) will be informed, and the machinery that will grind behind the scenes at Buckingham Palace.</p>
<p>This approach is, I think, indicative of a general unease with talking about dying. It reflects what I call our “experiential poverty” when it comes to death. </p>
<p>Due to a continually ageing population, many in the UK are lacking in firsthand knowledge of what it is to deal with death. There is an ever growing number of people who have not cared for someone at the end of their life, seen someone die, organised a funeral, administered an estate, or experienced close bereavement. </p>
<p>Added to this is the fact that these days most dying occurs in institutions (more than <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/datasets/deathsregisteredinenglandandwalesseriesdrreferencetables">two thirds of people in England and Wales died</a> in either a hospital, care home or hospice in 2017). Funerals are arranged by funeral directors, wills are dealt with by solicitors. As a result, there are millions of people with little or no experience of what it means to manage bodies, emotions, processes and procedures at the end of a life. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/death-matters-so-why-do-the-british-hate-talking-about-it-26653">Death matters – so why do the British hate talking about it?</a>
</strong>
</em>
</p>
<hr>
<p>Such a widespread lack of familiarity with death means that in the UK, people are ill prepared to deal with the end of life and its consequences. This is seen time and time again, in policy and media debates about increasing funeral costs and access to state support, living wills, assisted suicide and so on. </p>
<p>Culturally, economically and politically, the population lacks experience of, and engagement with death. And while there is no instant remedy for this experiential poverty, there are things we can put in place to ensure that it does not become a chronic, possibly insurmountable, social problem. </p>
<h2>Family time</h2>
<p>Crucially, the end of life needs to become an inter-generational and shared experience. It should not be left to the baby boomers to sort out their parent’s deaths. Rather, efforts should be made to include multiple generations in discussions about how to deal with dying, death and bereavement.</p>
<p>Such inclusion and involvement could help the transmission of ideas, knowledge and experience, building practice and customs that reflect changes within families and society more broadly over the past few decades. </p>
<p>Within families where there are multiple generations, adult children need to be involved in the care of their grandparents and the preparation for their deaths – as a preparation for the ends of their own parents’ lives. Older adults typically take on the responsibilities of managing the end of life as a way of protecting young generations from its realities. While admirable in intent, this simply means that a systemic lack of exposure to – and ill preparation for – dying and death continues.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/246880/original/file-20181122-182065-wbjm9o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">But really, we’re all heading in the same direction.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/baby-boomers-vs-millennials-traffic-sign-500432569?src=efYshySUjEf05ZiMBhdEKw-1-68">Shutterstock</a></span>
</figcaption>
</figure>
<p>Young adults should be encouraged to create pensions and wills to prepare for their later years and the end of their lives, despite the pressures of work, renting, home ownership and raising young families. </p>
<p>All those over 18 and able need to be directly schooled in dying, and in events and administration after the death of a loved one. Experiential learning will better prepare individuals for their own mortality, and help foster inter-generational relationships and potentially go some way to alleviating the social care time bomb.</p>
<p>This will expose disagreements and divergent practices between generations, helping individuals come together to make shared decisions about care, death, funerals and estate administration. It will respond to the current reliance (dependence) on bureaucrats and funeral directors to know what to do at the end of life. It could lead to more familial participation in palliative and end-of-life care.</p>
<p>For his part, Prince Charles appears well prepared for his mother’s demise, even if her death is not explicitly mentioned. Certainly it seems he is primed for taking on the role of sovereign when the time comes. Perhaps we could all learn from such as apprenticeship model when it comes to facing up to death and its consequences.</p>
<p>And I hope that the Duke of Cambridge, himself a king in waiting, has been involved in plans for commemoration and national mourning when his grandmother dies – so that he may learn for when the time comes for his own father’s death.</p><img src="https://counter.theconversation.com/content/107155/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Woodthorpe does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is a gap in most people’s knowledge – experiential poverty – about how to deal with death.Kate Woodthorpe, Senior Lecturer in Sociology, University of BathLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/882072017-11-30T13:23:13Z2017-11-30T13:23:13Z‘I bequeath U…’: when a text message can count as your will<figure><img src="https://images.theconversation.com/files/196969/original/file-20171129-29160-147g7xn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Isabell Winter/Unsplash</span></span></figcaption></figure><p>In a <a href="https://archive.sclqld.org.au/qjudgment/2017/QSC17-220.pdf">recent case</a> in Queensland, Australia, an unsent text found on a man’s phone after he had died by suicide was accepted as his will. This surprise ruling has raised questions about what can and can’t be considered a legally binding document. </p>
<p>In the Queensland case, a man had written a text on his phone shortly before his death. In the text, Mark Nichol explained that he wanted his brother and nephew to have all of his property. The text was never sent, but was discovered after his death by a friend of his widow.</p>
<p>The definition of what constitutes a valid will differs across jurisdictions but the broad aim is always to provide certainty and protection for the person making the will. A will is, by definition, only scrutinised for validity when that person is unable to give evidence for themselves. Legal formalities therefore offer assurances that the will is a true record of the person’s wishes.</p>
<p>However, not everyone manages to comply with those legal formalities fully. For example, if an English will has only been signed in the presence of one witness it will be invalid, no matter how much evidence there is that the deceased wanted it to be his or her will.</p>
<p>For these situations, some countries, such as Australia and Canada, and some US states, have “dispensing powers” that enable the courts to recognise an informal document or other record as a will, so the deceased’s wishes are carried out.</p>
<p>In the Queensland case, Nichol used the phrase “my will” in his text. That, together with a clear explanation in the text of how he wanted his possessions to be shared on his death, enabled the court to use dispensing powers to declare that the text operated as his will. </p>
<h2>A will in your phone?</h2>
<p>The wording of the dispensing powers generally requires that the deceased must have intended that the document in question would be their will. That means that draft documents don’t count – nor do documents describing in general terms what they would like to happen to their property when they die. That’s because in these cases, it’s unlikely that the deceased ever intended that document to operate as their will. It’s a difference between a specific intention (“this is my will”) and a general intention (“these are the terms on which I want to make my will”).</p>
<p>In the Nichol case, the key issue was whether the unsent text was a draft and whether it might have been revised later if the deceased had lived longer. </p>
<p>In <a href="https://archive.sclqld.org.au/qjudgment/2015/QCA15-206.pdf">another recent case</a>, also in Queensland, the Queensland Court of Appeal had interpreted the legislation strictly. In this case, the deceased had written an informal letter which indicated her wish to leave her property to her son, and to disinherit her daughter and grandsons. However, the letter was subject to a number of alterations and deletions (including some pages being partially torn off). The court refused to exercise dispensing powers on the grounds that the letter had remained under revision. The court wasn’t satisfied that the letter was in its final form and that the deceased had wanted it to operate as her will. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196975/original/file-20171129-12027-1ncv1ns.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A Queensland court made a surprise ruling on this issue.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3ABrisbane_Magistrates_Court_-_panoramio.jpg">Ché Lydia Xyang</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>In Nichol’s case, it was argued that because the text had not been sent, it should have been treated in the same way (was he still pondering its terms?). But the court rejected this argument, holding instead that the only reason that the text had not been sent was because the deceased did not want to alarm others before his death.</p>
<p>There have been other instances in which this requirement has not been strictly adhered to. For example, in a 2012 case in New Jersey, the deceased’s will couldn’t be located after his death but an unsigned document, that appeared to be a draft copy of the will, was found and this was admitted to probate under the equivalent US legislation. While the document probably reflected the deceased’s wishes, it is doubtful that he ever intended it to actually be his will. However, the court was prepared to overlook this difference; after all, if the copy was not accepted as his will then the deceased would have died without a will at all, and his property would have been distributed in a way that he definitely did not want.</p>
<h2>Convincing the court</h2>
<p>It’s in borderline cases such as Nichol’s that the question of the burden of proof becomes more important. In the US, “clear and convincing evidence” must be presented that the deceased intended for a document to be their will. This is a higher standard of proof than for most civil cases, in which the court only needs evidence that it is more likely that something is the case than that it is not.</p>
<p>In Queensland, the operation of the dispensing power is decided using the civil standard of proof. The use of this lower standard of proof explains why the court held that the unsent text in Nichol’s phone was effective as a will. The suggested reasons as to why it had not been sent, coupled with the fact that the text was not found by anyone who benefited from its terms, was sufficient to persuade the court that it was more likely that he did intend the text to form his will than it was not. In contrast, if it had been an unsent text in another context (general musings about what one should put in one’s will) it is extremely unlikely that the court would have been satisfied that the deceased intended it to operate as their will.</p>
<p>The Law Commission of England and Wales is currently reviewing the <a href="https://www.lawcom.gov.uk/project/wills">law on wills</a> and will probably recommend the introduction of a dispensing power. While some flexibility is to be welcomed, a lenient application of dispensing powers, coupled with a low standard of proof, could lead to more uncomfortable decisions in coming years. The bottom line is this: if you want your hard earned assets to go to specific people, make a valid will.</p><img src="https://counter.theconversation.com/content/88207/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Juliet Brook does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A surprising case in Queensland, Australia is changing the way we think about what can be used an official document after your death.Juliet Brook, Principal Lecturer in Land Law and Equity, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/856212017-10-13T04:32:01Z2017-10-13T04:32:01Z#LstTxt&Tstmnt: how an unsent text message could cut you out of an inheritance<figure><img src="https://images.theconversation.com/files/190077/original/file-20171012-31395-jc8on.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An unsent text message can be a will, an Australian court has decided.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/silhouette-woman-sitting-table-reading-text-316827575?src=QGoFV7gO-nxUNzOLGhm4eA-1-4">Dragon Images/Shutterstock</a></span></figcaption></figure><p>The unsent text message read:</p>
<blockquote>
<p>“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 ….</p>
<p>MRN190162Q</p>
<p>10/10/2016</p>
<p>My will”</p>
</blockquote>
<p>Based on those few sentences, a Judge of the Supreme Court of Queensland recently <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC//2017/220.html">decided in <em>Re Nichol</em></a> that the property of a deceased man should go to his brother and nephew, rather than his widow.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/tweets-from-the-afterlife-social-networking-with-the-dead-33686">Tweets from the afterlife: social networking with the dead</a>
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</em>
</p>
<hr>
<p>Of course, the man’s text was not a conventional will, and it certainly didn’t meet the formalities traditionally required by law. </p>
<p>The Court’s acceptance of this “document” shows that the law can keep up with technology. But it shouldn’t be cause for complacency, especially among generations who are already <a href="https://ris.cdu.edu.au/ws/portalfiles/portal/11396000">unlikely to write a will</a> or, indeed, to write anything down on paper at all.</p>
<h2>Will do it later</h2>
<p>Most people are familiar with the notion of will: it sets out our wishes about who should inherit our property, or who will take on certain responsibilities after we die. For instance, who will bury our body or take care of our pets? In law, these are called your testamentary intentions.</p>
<p>Figures vary about how many Australians have a “valid” will, but <a href="http://www.tag.nsw.gov.au/wills-faqs.html">it’s estimated</a> that 45% do not. Older people are also more likely to make one <a href="https://ris.cdu.edu.au/ws/portalfiles/portal/11396000">than younger generations</a>. </p>
<p>Given that young people are used to recording their thoughts and wishes in electronic form, they are potentially less likely to leave behind a formal written will, at least in a conventional format. </p>
<p>According to the traditional rules on inheritance or succession law, people without wills die “intestate”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=336&fit=crop&dpr=1 600w, https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=336&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=336&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=422&fit=crop&dpr=1 754w, https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=422&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/190081/original/file-20171012-31422-1m3i0m2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=422&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">If you make a will, it could save a lot of time and trouble.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/photo-testament-glasses-pencil-576474613?src=hhZBNXIoTp2fh4tL9u_13A-1-98">timyee/Shutterstock</a></span>
</figcaption>
</figure>
<h2>The problems with intestacy</h2>
<p>The rules relating to the division of assets and duties following a death intestate are formulaic and usually dictated by how close blood relatives are to the deceased. </p>
<p>This can lead to conflict, particularly for those whose close relationships aren’t always recognised by the state, like <a href="http://www.smh.com.au/comment/its-an-urban-myth-that-same-sex-couples-and-married-heterosexuals-have-equal-legal-rights-20151108-gktjcu.html">same-sex couples</a>.</p>
<p>Sometimes people die intestate because they didn’t make a will in the right legal form. So to avoid intestate contests, all Australian states and territories have introduced some form of <a href="https://www.alrc.gov.au/news-media/2011/succession-law-reform-nsw-2011-update">“dispensing” legislation</a>. </p>
<p>This allows the court to accept a document that states the testamentary intentions of a person to be a valid will – but only if the court is satisfied that the person really intended that “document” to be a will, among other factors. </p>
<p>Australian law has been relatively good at keeping up with changes in the way we document things. In Queensland, for instance, when a law refers to a document, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/aia1954230/sch1.html">it is taken to include</a>:</p>
<blockquote>
<p>any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced.</p>
</blockquote>
<p>The Queensland Supreme Court has previously led the way, holding that a note written on an iPhone can be a “document” <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2013/322.html">for the purposes of making a will</a>. </p>
<p>In <em>Re Nichol</em>, it continued this trend by holding that an unsent text message can also satisfy the definition of “document”. </p>
<h2>When an SMS is a will</h2>
<p>A written but unsent text message could simply be a partial thought, or something we haven’t committed to sending. So how could an unsent text operate as a will? </p>
<p>To work this out, a few things need to be scrutinised: the language, its contents, and the context. In other words, whether the person writing it had the capacity and intention to make it their will. </p>
<p>In <em>Re Nichol</em>, the immediate implication was that because the text was not sent, the deceased didn’t want it to operate as a will.</p>
<p>However, the deceased had concealed his decision to commit suicide, but had kept the mobile phone with him containing the draft message so that it would be discovered when he was found. The Court considered that he deliberately didn’t send it because he didn’t want anyone to know what he was about to do. </p>
<p>In other words, there was a legitimate explanation for the text being unsent.</p>
<h2>Digital is not always better than analogue</h2>
<p>The result in <em>Re Nichol</em> does not mean there’s no need to make a formal will. The surviving family may have to go through a lot of stress if all they have to rely on are electronic communications stored on your phone, computer or in the cloud.</p>
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Read more:
<a href="https://theconversation.com/digital-death-is-still-a-problem-a-widows-battle-to-access-her-husbands-apple-account-53410">Digital death is still a problem. A widow's battle to access her husband's Apple account</a>
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<p>There is one more question about electronic communications that has not yet been fully considered: what about the possibility of fraud or alteration to the message? </p>
<p>The old-fashioned ritual of signing a will in front of witnesses was a useful bulwark against fake wills, or the will being changed without the testator’s knowledge. In the future, the courts must require high levels of proof that the will is genuine and “un-hacked”.</p>
<hr>
<p><em>Elise Histed, an expert in succession law, contributed to this article.</em></p>
<p><em>If this article has raised concerns for you or anyone you know, call Lifeline 13 11 14, Suicide Call Back Service 1300 659 467 or Kids Helpline 1800 55 1800.</em></p><img src="https://counter.theconversation.com/content/85621/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brendan Gogarty does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Modern courts may be flexible in working out what your will is after you die, but that doesn’t mean you should be complacent.Brendan Gogarty, Senior Lecturer in Law, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746362017-03-15T14:45:13Z2017-03-15T14:45:13ZSupreme Court legacy ruling: leaving a gift to charity can be egoistic as well as altruistic<figure><img src="https://images.theconversation.com/files/160946/original/image-20170315-5357-1eytnww.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">via shutterstock.com</span></span></figcaption></figure><p>After a litigation saga lasting almost ten years, the UK Supreme Court has <a href="https://www.supremecourt.uk/cases/uksc-2015-0203.html">ruled</a> that a woman who was deliberately disinherited by her mother in favour of three animal charities is entitled only to a relatively small pay-out. The daughter, Heather Ilott, had contested the will in search of a maintenance payment. The ruling is a victory for charities reliant on legacy gifts in donors’ wills, and could discourage adult children from contesting wills in the future.</p>
<p>The case is a sad one, caused by the long estrangement of the now-deceased Melita Jackson and her daughter. Aged 17, her daughter left home for a man that her mother disliked, and after decades of cold relations, Jackson attempted to leave her child with nothing. </p>
<p>The mother’s will <a href="http://www.thirdsector.co.uk/supreme-court-backs-animal-charities-long-running-legacy-case/fundraising/article/1427486">left</a> almost all of her £486,000 estate to three animal charities: The Blue Cross, the Royal Society for the Prevention of Cruelty to Birds, and the Royal Society for the Prevention of Cruelty to animals. </p>
<p>Through litigation, the daughter attempted to carve out some of the money for herself. At one point in <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/ilr20&div=33&id=&page=">legal history,</a> no court would have thought to entertain her. Historically, it was a well-established legal principle that you can leave property to anyone you like, and equally, disinherit anyone you like. </p>
<p>In its ruling on the Ilott v The Blue Cross case, the Supreme Court ruled that the Court of Appeal had been wrong <a href="http://www.thirdsector.co.uk/appeal-court-rules-womans-daughter-money-left-three-animal-charities/fundraising/article/1357920">to award</a> Ilott £143,000, plus extra instalments to a value of £20,000. Instead, it said she should only receive the original pay-out of £50,000 decided by a District Court – a victory for the charities. </p>
<p>While this remains an outcome that the mother is likely to have disapproved of, the reduced pay-out could discourage family members from contesting wills that they do not like.</p>
<p>Thanks to the <a href="http://www.legislation.gov.uk/ukpga/1975/63">intervention of parliament,</a> spouses, civil partners, children and dependants have long been able to make a claim for financial provision, even where they have been deliberately overlooked. But the novelty of the Ilott v The Blue Cross case was that Jackson’s daughter was both an adult and able to provide for herself financially. Previous courts had always been extraordinarily wary of awarding money to independent adult children. The court’s restrictive decision means that legacy-dependent charities can relax a little and are unlikely to face a flood of cases of family members contesting wills – which a ruling the other way could have encouraged. </p>
<h2>For what motive?</h2>
<p>The case throws the nature of donor choice into a sharp relief, showing that every testamentary gift to charity links to another decision to exclude relatives, friends and loved-ones. That decision can be a painful one, bruising the most tender feelings and leaving people out of pocket. Gifts are sometimes made in the most uncharitable circumstances.</p>
<p>The mainstream view among researchers of gift-giving is derived from <a href="http://journals.sagepub.com/doi/abs/10.1177/0899764010380927">economics</a>, which casts donors as either “altruist” or “egoist”. </p>
<p>The altruistic motivation is the most intuitive – it matches our ordinary understanding of charity. Altruist donors are understood to be driven by the provision of material assistance to others. In short, they derive happiness from the consumption of other people. So altruists like to see the difference their gifts make. They are motivated by change in the world.</p>
<p>This altruistic frame does not fit Jackson’s gift. The judges noted that she had little connection with the charities. And while the gift shows an affection for animals, the fraught facts of the case point to non-altruistic motivations in play.</p>
<p>But was it egoistic – and made without any intention to actually benefit the charities? Egoistic donors are said to be motivated by the consumption of a <a href="http://www.dailymail.co.uk/news/article-2254354/The-Health-Lottery-forced-money-charity-shake-ministers.html">hedonistic pleasure</a>, or a feeling of glow. Although we do not readily link charity and egoism, it can be felt in the buzz we might get from playing a charitable lottery, from flaunting wealth at a charitable auction, or from assuaging guilt through a donation.</p>
<p>The theory might be relevant to this case, too, as Jackson might have been motivated by egoism rather than concern for the charities themselves. In the complex emotional circumstances of family estrangement, we are not always motivated by the best of feelings.</p>
<p>Regardless of the motivation of donors, charities are receiving more money left to them in legacies. In 2015, charities with income over £500,000 <a href="https://fundraising.co.uk/2016/09/08/2015-record-year-legacies/#.WMlHuhAnbhd">received</a> £2.3 billion in legacies. The decision in the Ilott v The Blue Cross case means that legacies will likely keep flowing into charity coffers for a while yet.</p><img src="https://counter.theconversation.com/content/74636/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Picton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Charities’ victory in inheritance case a relief for legacy fundraisers, but raises wider questions about individuals’ motives.John Picton, Lecturer in Charity Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746442017-03-15T12:56:15Z2017-03-15T12:56:15ZLandmark case upholds people’s right to leave money to whomever they choose<p>A <a href="https://www.theguardian.com/law/2017/mar/15/court-overturns-daughter-heather-ilott-win-mother-melita-jackson-will">Supreme Court decision</a> has highlighted the tension that exists in law between an individual’s obligation to provide in their wills for their close family and dependants and their freedom to leave their estate to whomever they choose.</p>
<p>Melita Jackson had been estranged from her daughter Heather Ilott for 26 years after the 17-year-old walked out of the family home to set up house with her then boyfriend. Attempts at reconciliation failed and when Jackson died in 2004 she left her estate of £486,000 <a href="http://metro.co.uk/2016/12/12/daughter-left-out-of-mums-will-wants-inheritance-despite-walking-out-aged-17-6318064/">to a range of charities</a>, including the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. She also left a letter of wishes explaining her decision to exclude her daughter.</p>
<p>Ilott subsequently exercised her right to claim against her mother’s estate under the <a href="http://www.legislation.gov.uk/ukpga/1975/63">Inheritance (Provision for Family and Dependants) Act 1975</a>. This entitles various categories of close relatives, such as spouses, co-habitees and children, to make a claim for “reasonable financial provision” from an estate. </p>
<p>The case made its way through the various courts. In 2007, the County Court awarded Ilott £50,000, ruling that her mother had acted in an “unreasonable, capricious and harsh” way towards her. The charities appealed against this decision, but in 2011 the Court of Appeal upheld it and sent the case back to the lower courts for a decision to be made as to the amount. </p>
<p>In 2015, the Court of Appeal ruled that Ilott should receive £143,000 to enable her to buy the housing association property that she and her husband occupied plus £20,000 in cash. The charities appealed this ruling and the Supreme Court has now reversed the appeal court’s decision, reducing the amount back to £50,000, noting that the appeal court’s order gave “little if any weight to the quarter of a century of estrangement or to the testator’s very clear wishes”.</p>
<h2>Relative generosity</h2>
<p>Ilott’s claim as a child of the deceased was based not just on the fact that her mother’s will had left her nothing, but on her own limited financial means. To bring a successful claim, she first of all needed to show that her mother’s will had not made reasonable financial provision, bearing in mind her daughter’s financial resources and needs. </p>
<p>This is where most claims by independent adult children fail – once a child has their own financial independence it becomes very difficult to prove that there is a need for an inheritance from one’s parents. But Ilott lives with her husband and most of her (now adult) children on limited incomes which are supplemented by benefits. It was these circumstances that enabled her to succeed in her claim that her mother’s will did not make reasonable financial provision for her.</p>
<p>A crucial feature in this case was the nature of the other beneficiaries under Jackson’s will and her relationship to them. The Inheritance (Provision for Family and Dependants) Act enables the court to use its discretion when determining the size of the award – and the factors to consider include the size of the estate and the financial needs and resources of the other beneficiaries.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/160935/original/image-20170315-5324-znkbji.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Supreme Court chose to uphold people’s freedom over their last will and testament.</span>
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<p>In this case, Jackson had made bequests to charities which she had no involvement with during her lifetime. The Court of Appeal’s decision in 2015 described the legacies to these charities as a “windfall” and reducing these was seen as far more acceptable than, for example, lessening the legacy of another child or close relative.</p>
<h2>Free will</h2>
<p>But the Supreme Court based its judgment on the notion of testamentary freedom – and the judgment by Lord Hughes focused on the lengthy estrangement between mother and daughter. Solicitors have long advised clients who wish to exclude relatives from their wills to write a letter of wishes explaining their decision – and it will be reassuring to many to see that the nature of the family relationship was taken into account.</p>
<p>Statutory obligations to maintain close family have existed since 1939 and the rationale behind these provisions was that we should not leave our relatives destitute. It was also envisaged that we would be less likely to disinherit our family if we knew that they could claim anyway. However, Baroness Hale’s judgment emphasises the difference between a moral obligation to provide for one’s children and the imposition of fixed inheritance rights for them, commenting that, while there is a recognised duty to maintain one’s spouse and infant children there is no recognised “duty to maintain adult children”. </p>
<p>It must be noted that it was not open to the Supreme Court to award Heather Ilott nothing; that point had been conceded by the charities in 2011. But the decision does reinforce the notion that whatever limits are placed on our testamentary freedom must be limited in size and scope.</p><img src="https://counter.theconversation.com/content/74644/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Juliet Brook does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Do people have an obligation to leave their money to estranged family members?Juliet Brook, Principal Lecturer in Land Law and Equity, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/687452016-11-23T19:22:34Z2016-11-23T19:22:34ZFacebook’s accidental ‘death’ of users reminds us to plan for digital death<figure><img src="https://images.theconversation.com/files/146717/original/image-20161121-4560-1n002b6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Not dead yet, Mark Zuckerberg on Facebook.</span> <span class="attribution"><span class="source">Facebook screenshot</span></span></figcaption></figure><p>The <a href="https://www.theguardian.com/technology/2016/nov/11/facebook-profile-glitch-deaths-mark-zuckerberg">accidental “death”</a> of Facebook founder Mark Zuckerberg and millions of other Facebook users is a timely reminder of what happens to our online content once we do pass away.</p>
<p>Earlier this month, Zuckerberg’s Facebook profile displayed a banner which read: “We hope the people who love Mark will find comfort in the things others share to remember and celebrate his life.” Similar banners populated profiles across the social network.</p>
<p>After a few hours of users finding family members, friends and themselves(!) unexpectedly declared dead, Facebook realised its widespread error. It resurrected those effected, and shelved the offending posthumous pronouncements.</p>
<p>For many of the <a href="https://newsroom.fb.com/company-info/">1.8-billion users</a> of the popular social media platform, it was a powerful reminder that Facebook is an increasingly vast digital graveyard. </p>
<p>It’s also a reminder for all social media users to consider how they want their profiles, presences and photos managed after they pass away.</p>
<h2>The legal uncertainty of digital assets</h2>
<p>Your material goods are usually dealt with by an executor after you pass away. </p>
<p>But what about your digital assets – media profiles, photos, videos, messages and other media? Most national laws do not specifically address digital material.</p>
<p>As most social networks and online platforms are headquartered in the US, they tend to have “terms of use” which fiercely protect the rights of individual users, even after they have died. </p>
<p>Requests to access the accounts of deceased loved ones, even by their executors, are routinely denied on privacy grounds.</p>
<p>While most social networks, including Facebook, explicitly state you <a href="https://www.facebook.com/help/213481848684090?helpref=faq_content">cannot let another person</a> know or log in with your password, for a time leaving a list of your passwords for your executor seemed the only easy way to allow someone to clean up and curate your digital presence after death.</p>
<p>Five years ago, as the question of death on social media started to gain interest, this legal uncertainty led to <a href="http://www.thedigitalbeyond.com/online-services-list/">an explosion of startups and services</a> that <a href="http://journal.media-culture.org.au/index.php/mcjournal/article/view/625">offered solutions</a> from storing passwords for loved ones, to leaving messages and material to be sent posthumously.</p>
<p>But as with so many startups, many of these services <a href="http://digital-era-death-eng.blogspot.com.au/2012/07/before-death-leaving-massages-behind.html">have stagnated or disappeared altogether</a>.</p>
<h2>Dealing with death</h2>
<p>Public tussles with grieving parents and loved ones over access to deceased accounts have led most big social media platforms to develop their own processes for dealing with digital death.</p>
<p>Facebook now allows users to designate a <a href="http://newsroom.fb.com/news/2015/02/adding-a-legacy-contact/">“legacy contact”</a> who, after your death, can change certain elements of a memorialised account. This includes managing new friend requests, changing profile pictures and pinning a notification post about your death.</p>
<p>But neither a legacy contact, nor anyone else, can <a href="https://www.facebook.com/help/625352257502955">delete older material from your profile</a>. That remains visible forever to whoever could see it before you die.</p>
<p>The only other option is to leave specific instructions for your legacy contact to delete your profile in its entirety.</p>
<p>Instagram, owned by Facebook, allows family members to request deletion or (by default) <a href="https://help.instagram.com/231764660354188">locks the account into a memorialised state</a>. This respects existing privacy settings and prevents anyone logging into that account or changing it in the future.</p>
<p>Twitter will allow verified family members to <a href="https://support.twitter.com/articles/87894">request the deletion</a> of a deceased person’s account. It will never allow anyone to access it posthumously.</p>
<p>LinkedIn is very similar to Twitter and also allows family members to <a href="https://www.linkedin.com/help/linkedin/answer/2842/deceased-linkedin-member-removing-profile?lang=en">request the deletion</a> of an account.</p>
<p>Google’s approach to death is decidedly more complicated, with most posthumous options being managed by the not very well known <a href="https://support.google.com/accounts/answer/3036546">Google Inactive Account Manager</a>. </p>
<p>This tool allows a Google user assign the data from specific Google tools (such as Gmail, YouTube and Google Photos) to either be deleted or sent to a specific contact person after a specified period of “inactivity”.</p>
<p>The minimum period of inactivity that a user can assign is three months, with a warning one month before the specified actions take place. </p>
<p>But as anyone who has ever managed an estate would know, three months is an absurdly long time to wait to access important information, including essential documents that might be stored in Gmail or Google Drive. </p>
<p>If, like most people, the user did not have the Inactive Account Manager turned on, Google requires a court order issued in the United States before it <a href="https://support.google.com/accounts/troubleshooter/6357590">will consider any other requests</a> for data or deletion of a deceased person’s account.</p>
<h2>Planning for your digital death</h2>
<p>The advice (above) is for just a few of the more popular social media platforms. There are many more online places where people will have accounts and profiles that may also need to be dealt with after a person’s death.</p>
<p>Currently, the laws in Australia and globally have not kept pace with the rapid digitisation of assets, media and identities. </p>
<p>Just as it’s very difficult to legally <a href="https://accan.org.au/grants/completed-grants/466-department-of-information-systems-university-of-melbourne">pass on a Kindle library or iTunes music collection</a>, the question of what happens to digital assets on social media is unclear to most people. </p>
<p>As platforms make tools available, it is important to take note and activate these where they meet (even partially) user needs.</p>
<p>Equally, wills and estates should have specific instructions about how digital material – photos, videos, messages, posts and memories – should ideally be managed. </p>
<p>With any luck the law will catch up by the time these wills get read.</p><img src="https://counter.theconversation.com/content/68745/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tama Leaver receives funding from the Australian Research Council. </span></em></p>When Facebook accidentally listed millions of users as “dead” in an embarrassing glitch it was a reminder that everyone needs to plan for their own digital death.Tama Leaver, Associate Professor in Internet Studies, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/604432016-06-03T03:31:24Z2016-06-03T03:31:24ZVIDEO: Michelle Grattan on the Indi project<figure>
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<p>Passing the halfway point of the election campaign, The Conversation took an in-depth look at three key seats in Victoria. University of Canberra acting vice-chancellor Frances Shannon and Michelle Grattan discuss focus group results in the seat of Indi and the Greens’ lunge for Batman and Wills.</p><img src="https://counter.theconversation.com/content/60443/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Passing the halfway point of the election campaign, The Conversation took an in-depth look at three key seats in Victoria.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/603402016-06-02T06:52:29Z2016-06-02T06:52:29ZElection podcast: the Greens’ fight for Batman and Wills<figure><img src="https://images.theconversation.com/files/124929/original/image-20160602-7618-w2a2f7.JPG?ixlib=rb-1.1.0&rect=0%2C834%2C3130%2C2099&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Greens candidate for Batman, Alex Bhathal, on the campaign trail at Preston Market.</span> <span class="attribution"><span class="source">Pat Hutchens/TC</span></span></figcaption></figure><p>The Greens, who already hold the seat of Melbourne, are making a big play for two nearby Labor-held seats – Batman, held by David Feeney, and Wills, where the popular Kelvin Thomson is retiring. Labor is especially worried about Batman, where Feeney’s failure to declare his A$2.3 million house added to his already embattled position. </p>
<p>This week The Conversation spoke to Greens leader Richard Di Natale about the Greens’ campaign and ambitions generally, including these two seats.</p>
<p>Di Natale said that if there were a minority Labor government and the Greens were in a balance-of-power situation, he would still hope for an agreement, despite Labor ruling out such an alliance. He indicated the Greens would press for concessions on policy rather than seeking a ministry.</p>
<p>The Conversation also interviewed the Greens candidate in Wills, Samantha Ratnam, and the Labor candidate Peter Khalil, as well as the Greens candidate for Batman Alex Bhathal. David Feeney declined an interview.</p><img src="https://counter.theconversation.com/content/60340/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Greens, who already hold the seat of Melbourne, are making a big play for two nearby Labor-held seats – Batman and Wills.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/594722016-05-18T19:44:42Z2016-05-18T19:44:42ZSeats on the line as Labor and the Greens do a difficult preference dance<figure><img src="https://images.theconversation.com/files/122931/original/image-20160518-9509-ktujll.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Greens leader Richard Di Natale (right) and Greens candidate for Grayndler Jim Casey are eyeing off the inner-Sydney seat.</span> <span class="attribution"><span class="source">AAP/Paul Miller</span></span></figcaption></figure><p>Before the 2007 election, Kevin Rudd vowed to <a href="http://www.smh.com.au/federal-politics/mind-game-delivers-a-win-for-pm-20090625-cy56.html">“mess” with John Howard’s mind</a>. He did and it worked.</p>
<p>Now, the government is trying to repeat the trick with Bill Shorten, and the Greens are their handmaidens. Talk of preference deals is the Coalition’s chief weapon, but so is Labor division over border protection, propaganda about a Labor-Green coalition, and Green opportunism on penalty rates.</p>
<p>At immediate risk for Labor are a number of inner-city seats, especially in Melbourne. The danger for the Greens are unintended consequences flowing from their flirtation with preference deals with the Coalition. It might just work too well, not merely damaging Labor, but also reducing the Greens’ overall influence and impact in the next parliament.</p>
<p>The Greens hold the seat of Melbourne courtesy of Liberal preferences in 2010 and incumbency at the last election. The Labor seats of <a href="http://www.abc.net.au/news/federal-election-2016/guide/batm/">Batman</a> and <a href="http://www.abc.net.au/news/federal-election-2016/guide/will/">Wills</a>, where Labor’s vote fell below 50% at the 2013 election, are at serious risk of following the same pattern on July 2 if the Liberals direct preferences to the Greens.</p>
<p>According to ABC psephologist Antony Green, the Greens could not win either seat without Liberal preferences – unless their primary vote overtakes Labor’s.</p>
<p>That is possible, but unlikely. It is even less likely in another seat being targeted by the Greens – the electorate of <a href="http://www.abc.net.au/news/federal-election-2016/guide/gray/">Grayndler</a> in Sydney, held by Labor’s Anthony Albanese. His primary vote was in the high 40s in 2013 and the Greens were outpolled by the Liberals.</p>
<p><a href="http://www.abc.net.au/news/federal-election-2016/guide/mpor/">Melbourne Ports</a> is another interesting but different case. Labor’s Michael Danby was outpolled by the Liberals at the last election, but retained the seat on the back of Green preferences. According to Green, a 6% switch in primary votes between Labor and the Greens would see the seat fall to the Greens – or the Liberals, depending on who preferences whom.</p>
<p>Just to be clear, no Liberal seats are at risk. The Coalition gains by putting Labor under pressure in seats it has held for decades, in some cases since federation. Liberal preferences would hand Batman and Wills to the Greens.</p>
<p>According to Liberal strategists, the threat to Labor in those two seats is already forcing them to commit hundreds of thousands of dollars to defend a pair of electorates it could once take for granted. That means less money to spend on seats Labor needs to win if it is to return to government.</p>
<p>This is already an uphill task, given that Labor needs to gain 20 seats nationwide to topple a first-term government – a feat not achieved federally since 1931. Given the current state of the polls, the best Labor can expect is another hung parliament. But that prospect creates tactical problems for Shorten, not the Coalition.</p>
<p>First, it would mean that whoever emerged as prime minister would have to assure the governor-general that he had the confidence of the House of Representatives. Shorten has recoiled from the Greens’ suggestions of another alliance, like that negotiated by Julia Gillard, like Dracula from a stake.</p>
<p>However, talk of any kind of agreement to guarantee passage of money bills is sufficient for the Coalition to raise the spectre of the last hung parliament with the memory of Gillard and Bob Brown joined at the hip, surrounded by rancour and dysfunction.</p>
<p>Second, it makes Labor look more left-wing than Shorten would like, as does mere talk of Labor being dependent on Green preferences to hold Batman, Wills and Grayndler among others.</p>
<p>The votes Shorten needs to attract are in the centre, winning primary votes at the expense of the Coalition. He cannot win more votes on the left. The less centrist his appeal, the fewer votes he will win from the government.</p>
<p>Shorten is caught in a vice between Liberal claims that he is beholden to the Greens and Green suggestions that Labor has lost its moral compass. On that score, the Coalition has now produced dirt sheets on at least seven Labor candidates, quoting past statements opposing turnbacks and offshore processing of asylum seekers. Undoubtedly, we have not heard the end of this.</p>
<p>The government argues this shows what Labor really thinks; that a Shorten prime ministership would again see boatloads of asylum seekers making it to Australian waters. For Greens voters, it is a daily reminder of Labor’s lack of compassion.</p>
<p>It is a similar story with the Greens’ opportunism on weekend penalty rates. Shorten is pointing out, quite reasonably, that legislating for double time on Sundays – as Greens leader Richard Di Natale is proposing – could quite readily be undone by a Coalition government.</p>
<p>On the other hand Shorten is committing a Labor government to a submission to Fair Work Australia in support of maintaining penalty rates. That ought to have considerable influence over whatever decision the independent commission makes.</p>
<p>The Greens, however, depict themselves as the only friends the workers have left, and portray Shorten as betraying his union roots. Another win for the Coalition.</p>
<p>For all that, it is just possible that the Greens could play this game too successfully.</p>
<p>Changes to the Senate voting arrangements mean they will lose one or possibly two of their ten seats. On the other hand, rightist independent Nick Xenophon might just win four seats in South Australia. Family First’s Bob Day might retain his seat, as might the Liberal Democrats’ David Leyonhjelm. That would give the crossbench a more conservative tinge, reducing the power of the Greens.</p>
<p>In the lower house, competition with Labor might produce more Green MPs. But downward pressure on Labor’s vote nationally might ensure the Coalition’s majority.</p>
<p>In short, it could mean greater numbers for the Greens in the lower house, but less influence and fewer senators. This would in turn mean the continuation of Tony Abbott’s climate-change policy and pressure from the business community for further industrial relations changes, not just the abolition of penalty rates.</p>
<p>Careful what you wish for.</p><img src="https://counter.theconversation.com/content/59472/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jim Middleton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With the election result almost certain to be close, preferencing will play a key role, leaving the progressive parties in particular in a difficult bind.Jim Middleton, Vice Chancellor's Fellow, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/591102016-05-09T12:55:54Z2016-05-09T12:55:54ZGo target the Liberals, Albanese tells the Greens on his tail<p>Deputy Prime Minister Barnaby Joyce is not the only senior politician having conniptions about his seat. Anthony Albanese was in his New South Wales electorate of Grayndler on Monday, the first full day of the campaign, sandbagging it against the Greens.</p>
<p>Greens leader Richard Di Natale was in Grayndler too, sledging Albanese and declaring his party would give the seat “an almighty shake”. Describing the former deputy prime minister as “a decent bloke”, Di Natale said what counted was not positive rhetoric, but “how you back it up”.</p>
<p>Unlike Labor and Albanese, the Greens hadn’t voted to lock up young asylum seeker kids, Di Natale said. They didn’t support new coal mines. Labor and Albanese had joined with the Liberals against setting up an anti-corruption watchdog and ending large donations from the big end of town, he said.</p>
<p>Albanese gave as good as he got. What was Di Natale doing targeting him rather than a Coalition seat? The Greens were giving priority to “getting [member for Melbourne] Adam Bandt someone to talk to during Question Time over defeating the Malcolm Turnbull-led Coalition government”. As for voting records, had the Greens voted for a price on carbon in 2009 in the Senate “it would have been entrenched”.</p>
<p>Labor’s bad blood against the Greens runs hot. It was evident during the recent all-night debate over a new Senate voting system, when the opposition heaped abuse on them for siding with the Coalition to get the change through.</p>
<p>There is real fear in Labor that the Greens, having won and then held the former Labor seat of Melbourne, could threaten other ALP House of Representatives seats. This is a long-term Green ambition; they even eye off the Liberal seat of Higgins, once occupied by Peter Costello. Realistically, if the Greens could seize one seat on July 2, as well as retaining Melbourne, they would have taken a big stride.</p>
<p>While there has been speculation about various Labor electorates, the most vulnerable are Batman and Wills in Melbourne, and Grayndler, which has two state Greens seats in it.</p>
<p>Batman is held by David Feeney, a factional player from the right, who replaced former minister Martin Ferguson in 2013. Feeney switched houses under a deal because he had an unwinnable place on the Senate ticket. In Wills, Kelvin Thomson, on the “green” end of Labor, has retired, leaving somewhat exposed a seat that was for a time in the 1990s held by left-leaning independent Phil Cleary.</p>
<p>Whether the Greens have any prospects in any of the seats will depend substantially on whether the Liberals preference them. The Victorian Liberals, after putting the Greens in the freezer at the 2010 and 2014 state elections and the 2013 federal election, are now reconsidering the position on preferences. The outcome, which would be in consultation with the federal Liberals, is uncertain. The Greens would not preference the Liberals but could issue “open” tickets in some seats.</p>
<p>Given the pressure on him from the Greens, the last thing Albanese needed on Monday was the Labor candidate for Melbourne, Sophie Ismail, telling Fairfax Media: “I have concerns about turnbacks, I don’t think they should be on the table”.</p>
<p>The comment put Bill Shorten on the spot. He could only keep repeating that
“Labor’s policy is clear” – he would not let the people smugglers get back into business.</p>
<p>When he was asked about Ismail’s comment, Albanese – who at the 2015 ALP national conference voted (on the losing side) against turnbacks – said: “I’m not about condemning people for putting forward their views. They’re entitled to do so.”</p>
<p>Albanese has well-honed political skills, displayed both within the Labor Party – he supported Kevin Rudd’s return to the leadership while maintaining a functioning relationship with Julia Gillard – and electorally.</p>
<p>If Labor stays in opposition and Shorten performs only middlingly at the election, Albanese – whose biography is coming out soon – potentially would be a strong contender for the leadership.</p>
<p>Like Joyce, Albanese is one of the best “retail” politicians in the parliament. They are much in demand by their respective sides to campaign in the marginal seats. But each is having to spend more time than is ideal defending his home turf. Albanese will be in Grayndler again on Tuesday.</p>
<p>The Conversation’s poll and election analyst, Adrian Beaumont, predicts Albanese will hold Grayndler comfortably even if the Liberals preference the Greens, “as he is a high-profile incumbent, and Labor won 46% post-redistribution in that seat”.</p>
<p>In the end, the odds are against either Joyce or Albanese losing his seat. But neither is willing to leave anything to chance.</p>
<iframe src="https://www.podbean.com/media/player/3b489-5f1958?from=yiiadmin" data-link="https://www.podbean.com/media/player/3b489-5f1958?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe>
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Deputy Prime Minister Barnaby Joyce is not the only senior politician having conniptions about his seat. Anthony Albanese was in his New South Wales electorate of Grayndler on Monday, the first full day…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/67952012-06-28T03:42:48Z2012-06-28T03:42:48ZReligion and the law: Sharia-compliant wills in Australia<figure><img src="https://images.theconversation.com/files/11703/original/m9m7jy3n-1339645386.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">All religions, including Islam can influence the legal decisions of individuals.</span> </figcaption></figure><p>In March this year the ACT Supreme Court <a href="http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CFQQFjAA&url=http%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Fdaughter-disputes-muslim-will-that-gave-brothers-twice-as-much%2Fstory-e6frg97x-1226298689720&ei=cXjZT7uLL-iYiAfrwdiyAw&usg=AFQjCNG-7iPNW5jXQ4kIL78ascK0tGgkGg">overturned</a> a will made by an elderly Muslim lady called Mariem Omari. Her daughter contested the estate and the court found that because Omari signed the will while she was a dementia patient, it was invalid.</p>
<p>This small case caught the attention of the national media, suddenly making news headlines around Australia.</p>
<p>Why? Because the will was drafted in accordance with Sharia or Islamic law, dictating that the daughter is entitled to half of her male counterparts. The media saw this as meaning under Sharia a female is worth half that of a male. Hence headlines like: “<a href="http://www.canberratimes.com.au/act-news/daughter-%0Achallenges-will-that-says-she-is-worth-half-her-brothers-20120314-1uz83.html">Daughter challenged will that says she is worth half her brothers</a>”. </p>
<p>Again today, The Australian <a href="http://www.theaustralian.com.au/business/legal-affairs/sharia-blend-bad-for-women/story-e6frg97x-1226410533364">reported</a> concerns that Sharia was being “blended” with Australian family law, to the detriment of Muslim women going through divorce.</p>
<p>But there is a fundamental misunderstanding here about the law, about Sharia and about the role religion has within our secular legal system.</p>
<h2>A secular system</h2>
<p>The Australian judicial system recognises any will whether it is based on religious teachings and principles or on secular values. Wills, in Australia, are rendered invalid not due to their religious or cultural nature but on the grounds of legal impropriety. </p>
<p>It is up to the individual in each case how their estate is divided. Problems surrounding a will can only arise when it is contested, which can be for any range of reasons, including lack of testamentary (mental) capacity, undue influence or fraud. </p>
<p>An individual can draw up a will distributing their wealth however they choose, and often that will relate to their relationships with loved ones and their beliefs - religious or otherwise.</p>
<h2>Religious application</h2>
<p>In Australia, the private application of Sharia is widespread in Muslim communities, including the design of wills.</p>
<p>But there is nothing wrong with adhering to religious beliefs within a legal framework (i.e without breaking the law) and this happens frequently with many religions in many different legal scenarios. </p>
<p>For example, in Canada and the US, <a href="http://www.huffingtonpost.com/2009/09/24/jews-only-inheritance-pla_n_298962.html">there have been a number of court cases</a> relating to a father or parents who disinherited their children for marrying outside the Jewish faith. In one case, the Illinois Supreme Court found that they were within their rights to disinherit any grandchildren who married outside the faith.</p>
<p>In Australia more recently, another case is before the courts looking at the enforceability of religious arrangements. A man is arguing that he does not need to pay a “deferred dowry” after divorcing his wife. The Islamic marriage included this in the contract, but the man’s counsel is arguing that this is contrary to public policy. The agreement is essentially like any other common law contract, only it is done in accordance with Islamic tradition.</p>
<h2>Sharia unlikely</h2>
<p>Before I explain the position Sharia takes on this issue, it is critical to note that this is not the first time the media has played the “Sharia” card to create hysteria and demonise Islam.</p>
<p>Since September 11, seeing Islam and Muslims as the “other”, particularly in the media in the West, has indeed become a lucrative business.</p>
<p>The fact of the matter is, as I have argued <a href="https://theconversation.com/sharia-why-a-dual-legal-system-will-not-work-in-australia-5281">previously</a>, there is neither a real nor a perceived threat of Sharia becoming a formal legal code in Australia. </p>
<p>Fundamentally, Muslims in Australia are not a large enough population, they selectively observe Sharia, and cannot agree on what exactly Sharia is.</p>
<p>The ethnic, sectarian, parochial and ideological differences are far too large to have a unified law that all Muslims adhere to. Even the dates for the <em>Eid ul-Fitr</em> (end of Ramadan celebration) and <em>Eid ul-Adha</em> (festival of sacrifice) festivals have not been settled. If Muslims in Australia cannot agree when to celebrate a religious festival, how can they agree on a corpus of law that is broad-ranging and governs all aspects of life, from the private relationship between a couple to economic management?</p>
<p>The suggestion then that Muslims pose a threat through the implementation of Sharia to the Australian way of life has no empirical substance.</p>
<h2>Unequal distribution?</h2>
<p>Regarding the distribution of wealth and property in Islam by the parents or a parent to the children, the Qur'an, which constitutes the principal divine source of Sharia, is unequivocally clear on the matter. </p>
<blockquote>
<p>“Allah commands you regarding your children. For the male a share equivalent to that of
two females” (Qur'an 4:11). </p>
</blockquote>
<p>There are only three verses [4:11, 4:12 and 4:176] in the Qur'an which give specific details of inheritance shares which are used by Muslim jurists.</p>
<p>Indeed the Qur'an raised the status of women by bestowing them share of inheritance which was not the case before the advent of Islam in the Arabian Peninsula. It also completely forbade the common practice of inheriting widows. </p>
<p>Through the introduction of inheritance law which was absent in the birth place of Islam at the time, the religion not only elevated the status of women but simultaneously safeguarded their social and economic interests.</p>
<h2>Double share</h2>
<p>Male children are entitled to the share which is twice as much as the female children. There is a sound and logical explanation for this.</p>
<p>In Islam, a male child receives twice the share of the female child not because she is worth less by any measure but because her entitlement is for her personal use only, she does not need to share it.</p>
<p>However, the male child is required to share his entitlement with his wife and children and if he is responsible for his mother or other family members then them as well. In Islam family provision is a male responsibility, and failure to do so constitutes a sin. </p>
<p>The issue here is not about equality but equity. In Islam equity takes precedence over equality and takes account of how the society functions.</p>
<p>The Mariem Omari case is neither about the application of Sharia in Australia, nor about a female being worth half her male counterpart in Islam.</p>
<p>The case only highlights that the design of wills is up to an individual and their beliefs. And that a will can be contested in the court of law in Australia if is seen to be legally flawed.</p><img src="https://counter.theconversation.com/content/6795/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jan Ali does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In March this year the ACT Supreme Court overturned a will made by an elderly Muslim lady called Mariem Omari. Her daughter contested the estate and the court found that because Omari signed the will while…Jan Ali, Lecturer in Islamic Studies and Modernity, School of Humanities and Communication arts, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.