Re Nichol – draft text message considered a Will

The judgment handed down last week by the Supreme Court of Queensland in Re Nichol is a profound reminder of the importance of ensuring your Will meets the legal requirements and is executed properly.

In Re Nichol, a draft text message left by the deceased on his mobile phone before committing suicide was considered a valid Will.

Facts of Re Nichol

The facts of the case are as follows:

  • The deceased had been married to his spouse for 1 year, but together with her for 3 years and 7 months.
  • The deceased and his spouse had problems in their relationship; with his spouse leaving him on at least 3 occasions, with the last time being 2 days before his death.
  • Although the deceased’s spouse had left him 2 days prior, she continued to assist by taking him to his mental health appointments.
  • The deceased committed suicide on 10 October 2016. His body was found by his spouse. The deceased’s mobile phone was located on a bench in the shed where the deceased’s body was found.
  • The following day, a draft text message was found on the deceased’s phone stating:
  • that he gave his house and superannuation to his brother and nephew;
  • his ashes were to be placed in the “back garden with Trish”;
  • making no provision to his spouse;
  • funds were held in a bank account and provided the pin;
  • his date of birth; and
  • “My Will”.

Applications made to the Court

The following applications made to the Court:

  • The deceased’s spouse made an application for a grant of letters of administration on intestacy – when someone dies without a Will, rule 610 of the Uniform Civil Procedure Rules 1999 (Qld) sets out who may apply to the Court to be the administrator of the deceased’s estate. The first person with priority under this rule is the surviving spouse of the deceased.
  • The deceased’s brother and nephew made an application to the Court to have the unsent draft text message recognised as the deceased’s last Will and testament – when there is a document that does not meet the formal execution requirements to be a Will under the law, an application can be made to the Court under section 18 of the Succession Act 1981 (Qld). Under this section the Court may dispense with the execution requirements for that document, so that it is recognised as the deceased’s last Will.

Test

The Court applies three conditions when considering whether to dispense with the formal execution requirements for a document, which are:

  1. Was there a document?
  2. Did that document purport to embody the testamentary intentions of the relevant deceased?
  3. Did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her or his part operate as her or his, Will?

Was the draft text message a ‘document’?

A broad definition of the word ‘document’ is adopted under the Acts Interpretation Act 1954 (Qld). The definition includes ‘any material from which sounds, images, writings or messages are capable of being produced’.

The Court determined that the draft text message was a ‘document’ for the purpose of the first question.

Did the document embody the testamentary intentions of the deceased?

As a general rule, for a document to embody testamentary intentions, the document must state the intentions of the deceased about what is to be done with their property upon their death.

In this case, the draft text messages stated what was to happen to the deceased’s house and superannuation upon his death, it stated what was to happen to his ashes, it identified that cash was in a bank account, and provided the pin number.

The Court determined that the draft text message embodied the deceased’s testamentary intentions.

Did the evidence satisfy the Court that the document was to operate as the deceased’s Will without more on his part?

The case turned on this condition, as do many other cases in this area of law. In essence, it must be established by the evidence that the deceased intended the document to operate as his Will.

The following circumstances were submitted to the Court, which the Court agreed with, and found that the deceased did intend the draft text message, without more on his part, to operate as his Will:

  1. The fact that the text message was created on or about the time that the deceased was contemplating death such that he even indicated where he wanted his ashes to be placed;
  2. That the deceased’s mobile phone was with him in the shed where he died;
  3. That the deceased addressed how he wished to dispose of his assets and expressly provided that he did not wish to leave his spouse anything;
  4. The level of detail in the message including the direction as to where there was cash to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending the document with the words “my will”; and
  5. He had not expressed any contrary wishes or intentions in relation to his estate and its disposition from that contained in the text message.

This brings me to the point of this blog: to avoid the expense of multiple applications being made to the Court, the cost of which may be ordered to be covered by the estate, it is important to ensure that your Will is executed properly.

I have recently written about the execution requirements for a Will. If you are considering signing a Will without consulting a solicitor, please review this article here.

If you have a document, which appears to embody testamentary intentions and you are unsure as to whether an application should be made to the Court. Please do not hesitate to contact me.