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Supreme Court Admits an Unsent Text Message to Probate

By 6 November 2017Wills and Estates

Last month the Supreme Court of Queensland handed down a judgment in the matter of Re Nichol; Nichol v Nichol. This case follows a line of cases dealing with informal documents and whether or not they can be construed as a Will. In this particularly interesting example, an unsent text message addressed to the deceased’s brother was determined by the Court to be a valid Will.

Queensland’s Succession Act 1981 provides the formal requirements to be observed when executing a Will. If these requirements are not met, the Will is invalid. However, there is scope in the Act to admit informal documents to probate provided that the Court can be satisfied that:

  1. There was a document;
  2. That document intended to embody the testamentary intentions of the deceased person; and
  3. The evidence satisfies the Court that the deceased demonstrated that it was his or her intention that the document should operate as his or her Will.

The Court must also be satisfied that the deceased had testamentary capacity at the time the document was prepared.

In Nichol it was argued by the deceased’s spouse that because the text message was never sent that the deceased did not intend for it to operate as a Will. She also argued that the deceased did not have capacity at the time he made the Will.

The deceased unfortunately committed suicide. The Court found that the fact that the text message was never sent was indicative of the deceased’s intention to ensure that his brother did not come and find him following his suicide attempt, rather than evidence that the deceased did not intend it to be his Will. The text message included the deceased’s initials, date of birth, the date of the message and the words “my Will”. The deceased was also clearly aware of the extent of his assets which were set out in the document. The Court was satisfied, on the basis of all of the evidence, that the document could be construed as a Will.

Applications under s18 of the Act in relation to informal documents are becoming more frequent as people use their electronic devices to record their testamentary intentions prior to their death. It is apparent that there is a wide scope of types of documents which might be considered informal Wills and that where the evidence demonstrates a clear intention on behalf of the deceased that the Court will endeavour to give effect to those wishes.

This case is a timely reminder of the value of having a properly prepared Will in place. Proving an informal document to be a Will is a long and difficult process. In this case expert testimony was required as well as significant medical evidence as to the deceased’s state of mind. The costs incurred on behalf of the deceased’s estate would have been very substantial and could have been easily avoided by having a Will prepared by a solicitor, at comparatively minimal expense.

Unfortunately for this estate, the application in relation to the text message Will might be just the beginning. The deceased’s wife and son have potential claims for further and better provision from the estate as no provision was made for them in the Will. Seeing a solicitor to talk about estate planning options to minimise the impact of potential claims on your estate is highly recommended. We have a team of expert Wills & Estates Solicitors able to assist you with all aspects of your estate planning.