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Court finds unsent text message to be a Will

Wills and Estates: 23 March 2019

Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

In a judgment delivered on 9 October 2017, the Supreme Court of Queensland has held that an unsent text message be admitted to probate as the deceased's final Will.

The mobile phone of the deceased was found with his body after he tragically took his own life. Discovered on the mobile phone was an unsent text message saved as a draft addressed to the deceased's brother stating that his brother and nephew were to keep all that he had, directing what to do with his ashes, that his estranged second wife was to take only her stuff and providing details of his pin number for his bank account. The message was entitled "my Willand included the abbreviation "MRN190162Q which matched the deceased's initials and date of birth. There was no evidence of any other Will made by the deceased.

The brother made an application that the unsent text message be admitted to probate as an informal Will (an application where the Will is not executed in accordance with the legislation). The effect of this application would be that the brother and nephew would inherit the Estate. The deceased's second wife made a competing application on behalf of herself and their son for letters of administration upon intestacy (an application where there is no valid Will). The effect of this application would be that the wife and son would inherit the Estate.

The Court decided that the unsent text message be treated as a Will. Whilst it did not meet the formality requirements, amongst other things, it represented the deceased's testamentary intentions. The Court found that the fact that the text message had not been sent was "consistent with the fact that he did not want to alert his brother to the fact that he was about to commit suicide, but did intend the text message to be discovered when he was found. Importantly, it was intended by the deceased to operate as his Will.

It is not the first time an informal 'document' has been found to constitute a Will, however this case shows that the Courts are increasingly willing to accept new scenarios. Of course, it is prudent to ensure that your testamentary intentions are always properly recorded to avoid any uncertainty and angst after your passing.

Informal Wills in Victoria

Similar legislation permitting informal Wills applies in Victoria.

In Victoria, generally speaking, for a Will to be valid:

  1. It must be in writing and signed by the testator (person making the Will) or at the testator's direction; and
  2. It must be made with the intention of executing a Will; and
  3. It must be signed by the testator in the presence of two or more independent witnesses present at the same time who also sign the Will in the presence of the testator.

However, the Supreme Court has the power to dispense with those requirements and permit an informal Will if the Court is satisfied that the person intended the document to be his or her Will. The term 'document' has been interpreted broadly and has enabled a printed copy of a computer file and a video Will to be admitted to probate.

Whilst cases can provide guidance as to whether the evidence before the Court will satisfy the burden of proof, any application to admit an informal Will can be complicated and the determination of the issue ultimately depends on the facts and the evidence of each individual case. Testamentary capacity, knowledge and approval, and undue influence are all examples of relevant factors the Court will consider in determining whether a document constitutes an informal Will.  

With Tasha Eliassen

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