AUSTRALIAN COURT HOLDS THAT UNSENT TEXT MESSAGE CAN ACT AS VALID WILL

The Queensland Supreme Court has held that an unsent text message written on a man’s mobile phone shortly before he died adequately captured his testamentary intention.  In doing so, the Court dispensed with the normal execution requirements of a will, and allowed the text message to be admitted to probate: Re Nichol; Nichol v Nichol [2017] QSC 220.

The Court had been asked to determine two competing applications.  The first was brought by the deceased’s widow, and supported by his son, asking that the rules of intestacy be applied.  The second (and ultimately successful) application was brought by the deceased’s brother and nephew, who stood to gain under the terms of the unsent text message.

This case highlights the powers given to courts in other parts of the world when considering the validity of documents that purport to set out testamentary intentions.  This can be contrasted from the position of the courts in England and Wales, where the requirements for creating a will continue to be strict. We consider the decision further below.

Background

Mark Nichol committed suicide in October 2016.  His mobile phone, which was found close to his body, contained an unsent text message reading:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie 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 3636

MRN190162Q

10/10/2016

My will”

There was no dispute that the text was addressed to Mr Nichol’s brother, David, and that the reference to “Jack” was to Mr Nichol’s nephew.

The reference to “Julie” was to Mr Nichol’s widow.  She and Mr Nichol had been married for one year and had been in a relationship for three and a half years.  Mr Nichol’s widow had left him on at least three occasions, the final time being some two days prior to his death.  However, she still made arrangements to take him to his mental health appointments and they had spent the weekend together prior to his death, cleaning garden clippings and boxing books for charity.

Mr Nichol had limited contact with his son, who was not referred to in the text message.

In making her application, Mr Nichol’s widow attached particular significance to the fact that the text message was never sent.  She contended that this was consistent with Mr Nichol being uncertain over the purported distributions set out in the message.  Mr Nichol’s brother and nephew disputed this by arguing that it was likely that Mr Nichol did not send the message in an effort to prevent either his brother or nephew taking steps to stop his suicide.  They argued that the text message was clearly described as “my will” and that its level of detail indicated Mr Nichol intended for it to operate as such.  Further, they argued that Mr Nichol wrote the message shortly before his death and accordingly appreciated the significance of it when he created it.

Decision

Section 18 of Queensland’s Succession Act 1981 allows a court to declare that a document be treated as a valid and enforceable will, despite the fact that it may not meet the formal procedural requirements associated with a will.  To do this, the court must be satisfied that the document embodies the testamentary intentions of the deceased in a way that demonstrates that the deceased intended the document to “without more on her, or his, part operate as her, or his, will” (Lindsay v McGrath [2016] 2 Qd R 160 at [55] (“Lindsay“); Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]).  In this respect, it is not sufficient for the document to simply set out the deceased’s testamentary intentions.  Rather, the deceased must have wanted that particular document to be his or her final will, and must not have wanted to make any changes to that document (Lindsay at [60]).

The Judge in the current case was ultimately satisfied that Mr Nichol did intend for the draft message to operate as his will, without him having to do anything further.  In reaching this conclusion, the Judge focused on the fact that:

  1. The message had been created very close to the time that Mr Nichol was contemplating his death;
  2. The phone was with Mr Nichol when he died;
  3. The message addressed where Mr Nichol wanted his ashes to be placed;
  4. The message set out how Mr Nichol wanted to dispose of essentially all of his significant assets, and specifically addressed the fact that he did not want his widow to receive anything;
  5. The message contained sufficient detail to allow Mr Nichol’s instructions to be carried out.  In this respect, it set out where cash could be found, that he held money in the bank, and provided a pin number for his bank card;
  6. The message specifically included the words “my will”; and
  7. Mr Nichol had not expressed any contrary wishes or intentions in relation to his estate from that contained in the message.

In concluding, the Judge held:

I do not consider the fact that the message was saved as a draft message and that [Mr Nichol] did not send it, is evidence that he did not wish the text message to be operative as his will.  Rather, I find that having the mobile phone with him at the place he took his life so it was found with him and not sending the message, is consistent with the fact that he did not want to alert his brother to the fact that he was about to commit suicide, but did intend the text message to be discovered when he was found.

The surrounding circumstances also support the terms of the text as representing his testamentary intentions and that he intended it to be operative as his will, without more on his part.

I accept the evidence that the deceased maintained a relationship with [his brother and nephew].  I consider that at least at the time of his death the deceased regarded his relationship with [his widow] as at an end, given that she had moved out and that he had asked her to stay with him until he was employed which she had rejected.  Their relationship was relatively short.  Thus her exclusion in those circumstances is explicable and does not indicate that he did not intend the message to be operative on his death as a will.  His message makes it clear he contemplated her claim on his assets at the time he typed it.”

Analysis

The decision in this case is a good example of the powers given to courts in some jurisdictions to validate a purported will in circumstances where it does not meet the necessary procedural requirements.  Indeed, the purported will in this case was not remotely close to complying with those requirements, but was able to be validated nonetheless.

Other courts throughout Australia have similar powers (see, for example, section 8 of Succession Act 2006 in New South Wales), as do those in New Zealand (see section 14 of the Wills Act 2007) and Hong Kong (see section 5(2) of the Wills Ordinance).  Importantly however, the courts of England and Wales have no such power.  Rather, probate will be granted either in accordance with a previous valid will, or the rules of intestacy.

Relevantly, the Law Commission is currently consulting on proposals that would seek to update the law relating to wills.  Amongst the proposals, the Commission is asking for views on whether the courts in England and Wales should be able to dispense with the formalities of a will in circumstances where it is clear what the deceased wanted.  In considering this possible extent of this proposal, the Commission’s consultation paper provides that:

… the potential recognition of electronic wills via a dispensing power is a double-edged sword.  On the one hand, it seems essential that the power be applicable to electronic documents.  Testators who do not follow the formality rules – either through ignorance of them or necessity – are increasingly likely to use electronic means.  For example, a person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.  On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.  In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious.  While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.”

Law Commission “Making a will” (Consultation Paper 231) at [5.96]

The current consultation is open until 10 November 2017.

While the sad circumstances of Mr Nichol’s death provide a rather extreme example of the powers of validation, the case sheds light on the potential benefits of giving the court more power to give effect to what it perceives as being a deceased’s testamentary intentions.  In any event, the case also illustrates the importance of having a clear will, and the care that should be taken to ensure costly and messy arguments do not occur after one’s death.

Richard Norridge
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