Draft Text Message as an Informal Will Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

I have previously posted about Informal Wills. In essence most jurisdictions have passed legislation that provides Courts with the power to deduce the testamentary intention of the deceased by taking extrinsic evidence into account. However it goes without saying that it is much easier, and less expensive to make a formal Will.

Mark Nichol, took his own life in October 2016. Mark had not made a Will but had left an unsent text message on his mobile phone addressed to his brother David Nichol.

Mark’s wife Julie found his mobile phone on a workbench in the shed where his body was found. The following day, Julie asked a friend to look through the contact list of the mobile in order to contact Mark’s friends about his death. Whilst looking through the phone list Julie’s friend found an unsent text message. Julie informed Mark’s brother Bradley and nephew Jack, who took a screen shot of it:

“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”

David and Jack sought direction from the Queensland Supreme Court that this message be treated as a will pursuant to the Succession Act 1981(Qld) (“The Act”) which provides if the Court is satisfied that that a person intended a document to form their Will, then the document forms a Will if in the Courts opinion it purports to state the testamentary intentions of the deceased person.

The legislation defines a document broadly to include:

“…any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).”

The Court was satisfied that the draft text message met this definition and is a document.

Julie argued that as the text message was never sent it is consistent with the deceased not having made up his mind therefore the document could not be construed as an informal Will. If this was the case Julie argued that Mark died intestate and she sought administration of the intestate estate.

If Mark died intestate the intestacy rules provide that the estate  be divided between his wife, Julie and his son, Anthony. Mark and Julie had been married for one year and had been in a relationship for three years and seven months. The relationship had problems and Julie had left Mark on at least three occasions, the final time being two days prior to his death.

The Court found that Mark had no relationship with his son Anthony and while he and his wife did have happy times, there was evidence they had a “rocky” relationship

The Supreme Court held the wording of the text, including the use of the words “my will” indicated that Mark knew what he was doing, and was aware of the nature and extent of his estate as he referred to his house and superannuation and specified that Julie was to take her own things.

The Court was mindful that if it found the message constituted an informal Will David and Jack stood to benefit and therefore “treated their evidence with caution and weighed it against all of the evidence.”

The Court agreed with David that Mark had testamentary capacity at the time of creating the text message.

Importantly the Court was satisfied on the balance of probabilities that

• as the text message was titled “my will”;
• was created on or about the time Mark was contemplating death;
• addressed in detail how he wished to dispose of his assets and expressly provided that he did not wish to leave Julie anything;
• indicated where he wanted his ashes to be placed;
• had not expressed any contrary wishes or intentions in relation to his estate and its disposition from that contained in the text message;
• and his mobile phone was with him in the shed where he died;

the text message reflected that Mark intended for it to be his final will and was not merely an emotional expression of wishes.

Although the Court considered this text message as an informal Will it may not set a precedent for validation of similar documents.  Your Will should be prepared and executed in accordance with the formal requirements to save the time and expense of legal action not to mention the additional stress to your family and friends at an already difficult time.