I have been hearing a lot of discussion in public about a recent case in the Queensland Supreme Court where an unsent text message was held to be a Will. You may have heard or read about it as well. If you haven’t read about it yet then you can find a report on that case here.
Naturally, I am answering more questions about these kinds of cases so I wanted to clarify what actually happened in this case.
It is not uncommon for people to write their own Wills in the privacy of their own home. In many cases, these documents are not executed with all the usual formalities. The usual formalities that I refer to require that the Will be signed by the willmaker in front of two adult witnesses.
In certain circumstances, a document may be treated as a Will even if it has not been formally executed. This is often the case when people write a document themselves and perhaps sign it. Tragically, as was the case in unsent text message case, this often happens when people are considering taking their own life.
In Re Nichol; Nichol v Nichol & Anor QSC 220 the deceased died on 10 October 2016. His phone was found near his body. The phone was accessed by the person who found him and they discovered an unsent text message that read:
You and [nephew] keep all that I have house and superannuation, put my ashes in the back garden…[wife] 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…
MRN190162Q
10/10/2016
My will
The abbreviation MRN190162Q was understood to be the deceased’s initials and date of birth.
Without getting too complicated, the Court was required to be satisfied with three key questions:
- Was the unsent text message a document? A document is understood to be almost anything ‘from which sounds, images, writings or messages are capable of being produced or reproduced’.
- Did the unsent text message contain ‘testamentary intentions’? Testamentary intentions are expressions of the person wanted to happen to their property after they die.
- Did the deceased intend the unsent text message to be his last Will? Unlike the previous two questions, which are more objective, this one turns on the circumstances of the case.
In this case, the Court held that the answer to each question was yes and the unsent text message was admitted to probate as a Will. It now joins other cases where Word documents , notes stored in an iPhone’s notes function, suicide notes and DVDs have been treated as Wills.
Cases like this are a good reminder to look carefully for documents that may be Wills. Depending on the circumstances the Court may be able to give effect to the deceased person’s wishes.
If you are aware of a document that might be a Will and would like to know if we can assist you then contact our estates team at estates@fgd.com.au or 02 6181 2050.
Timothy Morton is a specialist Wills lawyer and is one of the best lawyers in Canberra practicing in Wills and Estates. He was recognised in the prestigious Doyles Guide as a preeminent Wills and Estates lawyer and a leading Estate Litigation lawyer in 2017.
If you or anyone you know needs help:
- Lifeline on 13 11 14
- Kids Helpline on 1800 551 800
- MensLine Australia on 1300 789 978
- Suicide Call Back Service on 1300 659 467
- Beyond Blue on 1300 22 46 36
- Headspace on 1800 650 890
Timothy Morton is an Associate Director in our Canberra, Melbourne and Sydney offices.