The Queensland Supreme Court has ruled that an unsent text message is an official will. The draft message said that Mark Nichol’s intention was for his assets to be left to his brother and nephew, rather than his wife and son.
In Re Nichol, the court said it recognised the draft text as a will, granting probate to the nominated executors.
Nichol was married for one year. The marriage was described as a difficult one, with his wife leaving him on three separate occasions, the final time just days before his death. Nichol suffered from depression and took his own life.
Under normal circumstances, in Queensland a valid and enforceable will must be in writing and signed by the will-maker in front of two witnesses.
According to lawyers HopgoodGanim, where a will does not comply with these requirements the court can dispense with the formalities and declare an informal document valid.
In a note to clients on the case, the firm says: “The court can make this declaration if a document, which purports to state the testamentary intentions of the deceased exists and the court is satisfied that the deceased intended the document to be, or form part of, their will.”
The term “documents” is not limited to paper but is defined broadly to include most forms of written or recorded communication.
Generally, the court is extremely cautious in accepting an informal document as a will, HopgoodGanim says.
However, the unsent text message was held as a valid will because the court was satisfied that the message was intended to represent the author’s intentions and it was composed in contemplation of his death.
It also found that the message dealt with the author’s property so comprehensively that it was designed to be a will. In addition, the message was composed in a way that indicated the author appreciated those who had a claim upon his estate and was determined to discriminate between them.
The text message ended with the words “My will”. Nichol had no formal will in place.
The court also found that the author’s interactions with his family members prior to his death did not indicate any intentions contrary to those set out in the text.
And it ruled that the text message was composed in circumstances where it was unlikely to have been written or altered by anyone else.
Nichol’s widow argued that the text message was never sent, indicating that Nichol had not made up his mind. However, the court ruled that Nichol had intended the unsent message to operate as a will.
HopgoodGanim says the ruling will not necessarily have wide application. “The danger in relying on decisions like Re Nichol is that it is very difficult to reproduce the circumstances that would lead a court to declare another text message as a valid will,” it says.
And it points out that in a 2011 decision, the Queensland Supreme Court ruled that a document saved on the deceased’s computer was not a valid will because it was not satisfied that the deceased intended that the document be her will.
