The Supreme Court of Queensland has ruled this week that a man’s unsent SMS text message which cut out his wife and son was a valid will and was admitted to probate.
Mark Nichol, aged 54, tragically took his own life on 10th October 2016. He was found with his mobile phone that contained a draft text message to his brother David Nichol which 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 the TV and a bit in the bank… My will ?”.
The deceased’s widow Mrs Julie Nichol applied to the court for a grant of administration on intestacy, claiming that Mr Nichol had passed away without a will. This means that if the application was upheld by the court, Mrs Nichol would manage the deceased’s assets and would be the primary beneficiary of his estate. The couple had been married for one year of their three year relationship, and it was proven that the deceased had left his widow only two days prior to his death.
The deceased’s brother Mr David Nichol and his son also applied to the court for a grant of probate on the unsent text message and that it be treated as his last will.
Justice Susan Brown found that the reference to his house and superannuation and his specification that his widow was to take her own things “indicates he was aware of the nature and extent of his estate”. Justice Brown considered a range of facts and circumstances in her determination, and noted that the text message was “created on or about the time that the deceased was contemplating death”. She held that “the informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions” and referred to other cases of informal wills, such as videos and DVDs, before upholding the text message as Mr Nichol’s last will.
This decision will undoubtedly pave the way for more informal, unusual and even digital wills to be upheld by the courts. However, the decision should be taken with a level of caution and people should not rely on their phones or emails to draft their wills. Even if upheld by the court, the cost of proving the informal will would be incredibly high and each case would only be considered on the unique facts and circumstances.
For a will to be considered valid in New South Wales it must be in writing and signed by the will-maker in the presence of at least two witnesses who also sign the will.