To whom are you bequeathing your WhatsApp chats?
Here is a topic you probably didn't think about when you wrote your will: who will get your mobile phone, where all your WhatsApp chats, videos, photos, emails, and more are stored. So why is it actually important to include in your will an instruction regarding the use of phone content by heirs?
The author is an attorney, partner at Firon Law Firm, head of the family law department.
Here is a topic you probably didn't think about when you wrote your will: who will get your mobile phone. The same phone where your WhatsApp chats with the whole world are stored, the intimate and embarrassing videos you filmed with your partner, work emails, and more.
L., a mother of a son from her first marriage, remarried. The relationship between her second husband, her son, and the rest of her family members was good until she fell ill with cancer and needed treatment and ongoing assistance. During her illness, the relationship between the husband and her family members deteriorated against the backdrop of mutual accusations, and the crisis deepened after her death.
The widower set up a mourning tent in the yard and did not comply with the family's request to sit shiva in the house where he lived with the woman. The tension increased, tempers flared, and eventually, the connection between the parties was completely severed following mutual complaints to the police and restraining orders issued between them.
About a year after her death, her son and the woman's two sisters filed a tort claim for 2.7 million shekels against the widower, his daughter from his first marriage, and his new partner. Within the framework of the claim, a variety of allegations were raised, including defamation, filing frivolous proceedings, assault, private nuisance, theft, threats, extortion, exploitation, fraud, witchcraft, impersonation, selling movable property contrary to the will, and emotional distress.
Evidentiary use of phone chats
The claim was dismissed on its merits, and the plaintiffs were ordered to pay legal costs of 150,000 shekels, but the interesting legal point in the verdict concerns the evidentiary use the plaintiffs made of the chats between the widower and the woman, which were retrieved from the deceased's mobile phone by her son after her death.
The plaintiffs' central argument was that the widower did not love the woman and did not care for her, and they even went as far as accusing him of abusing the woman, which led to her death.
To establish this message, they even initially filed the claim in the District Court instead of the Family Court, which has the authority to discuss the matter, claiming that although he was married to the deceased, from their perspective, he is "not a relative, he is a stranger, more of a stranger than a stranger." The plaintiffs relied on the personal chats between the widower and the woman to strengthen their argument that the relationship between them was troubled.
The widower objected to the presentation of the personal chats and argued that it was a violation of privacy and wiretapping, but the court rejected his arguments and allowed the presentation of the chats and their use by a third party.
In its decision, the court relied on a legal precedent established in the 90s of the last century, which is still valid and existing, according to which the heirs of the deceased do not inherit only his physical objects but also his spiritual and personal rights.
Accordingly, since the deceased left a will in which she bequeathed certain property to the widower, but the bulk of her estate to her son, it was determined that the son steps into her shoes and is entitled to make use of her mobile phone as well, with all its contents.
Include a clear instruction in the will
This is a ruling that raises difficulty and does not reflect the current reality. In the past, the personal information and secrets that a person left behind could be found at most in a written diary or individual documents, which one could expect to reach other hands after death if not arranged otherwise. Today, the vast majority of the most personal and sensitive information is stored on the mobile phone, but precisely because it is an integral part of daily life, many do not give it thought.
It is hard to assume that a person who passed away intended for his children or others to go through the entire content of his mobile phone, and certainly not his chats with third parties. Therefore, the determination that there is no violation of privacy or wiretapping in relation to the deceased raises fundamental questions.
Since there is no immediate expectation for a change in legislation or an update of the precedent, it is recommended to increase awareness of the issue and include in the will an explicit and clear instruction regarding the use of the mobile phone's contents by the heirs.
