Australia: Unsent text message valid as a will

Last Updated: 15 October 2017
Article by Mark Fatharly

On 10 October 2017 the Queensland Supreme Court determined that an unsent text message on a mobile phone from Mark Nichol leaving everything to his brother and nephew was valid as his last will1. The will excluded Mark's wife and son.

The phone was found near his body on 10 October 2016 after he committed suicide with the unsent message on his phone 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 the TV and a bit in the bank Cash card pin [ __ ]
MRN190162Q
10/10/2016
My will

The evidence accepted by the Court included that the name Dave Nic was an abbreviation for his brother's name; Jack was the deceased's nephew; Trish was the Mark's deceased first wife, and Julie, one of the parties to the action, was Mark's wife. MRN190162Q were Mark's initials and date of birth.

Legal Issues For Consideration

If the text message had not been valid as a will, Mark's estate would have been divided between his wife and estranged son. However, the Court after hearing expert evidence about the phone, and from the parties and close friends, determined that the unsent message was an electronic form of document which purported to embody Mark's testamentary intentions, and demonstrated his then intention that the document, without more on his part, would operate as his will.

The text message did not meet the usual formal requirements for a will, however the Queensland Supreme Court was able to give effect to the text message as an informal will2.

A fundamental requirement for a Court to give effect to an informal will is that there be a document. The definition of a document for that purpose is very broad and includes electronic or other forms of documents and which may be in the form of sound or images, writing, or messages.

In 2013 the Queensland Supreme Court also held that documents on an iPhone constituted a will3 so the recent finding does not come as a complete surprise, rather it is a matter of evidence.

Other documents which have been accepted by the Courts as informal wills have included a video recording of the deceased and various forms of written documents and wills which usually have not been properly executed.

So Why Bother Having a Professionally Drawn Will ?

So if it is as simple as typing a text message, why have a will professional prepared?

Without a valid will a person's estate will pass under intestacy laws in their state. Their estate will pass to certain relatives according to law and potentially in undesired proportions or to unintended beneficiaries.

While the sad circumstances of Mark's passing inform his reasons for preparing the text to attempt to leave everything to his brother and nephew:

  1. In Mark's text message he sought to exclude his wife and son. If the Court had found that the message did not constitute a valid informally made will:
    1. His wife would likely have applied to be the administrator of his estate, controlling his affairs; and
    2. His wife and son would have received his estate;
  1. Expensive legal proceedings with detailed evidence were required to determine whether the text message constituted a valid will. An administrative grant of probate could have been issued at considerably less expense and time if a properly drafted will had existed;
  2. The proceedings took 12 months from his death to have heard and determined, and in the meantime the family were already dealing with his loss;
  3. These proceedings were only as to the validity of the text as a will. Potentially, other proceedings could still arise if the wife or son consider there was a failure to make adequate provision for them in the will constituted by the text message or as the consequence of not having a valid will;
  4. Such proceedings are often destructive of family relationships and can cost tens of thousands of dollars or more per party.

Even if you considered preparing your own will, there can be numerous issues arise. Poorly drafted wills can fail in whole or in part, again with unintended consequences, and after significant expense to have the will declared to be valid or invalid or to interpret it. Handwritten will kit wills purchased from the post office or newsagent are often the source of the Courts' frustration.

In a recent WA case4, parts of a will kit will were changed after execution. As Justice Kenneth Martin stated:

[125] ...tampering with an executed will once it has been signed and witnessed is a seriously dangerous practice which is to be actively discouraged...
[126]...Mr Jones appears to have mistakenly believed that it was fully permissible for him just to 'update' his will annually ... by adding in and taking out pages or the like, then reassembling the new pages with an original signed page.
[127] This is an age where people outlay significant amounts on a regular basis to update their phones – so they are equipped with the latest technology. But a small outlay to correctly execute a will to secure potential benefits for loved ones and dependants should be an elevated priority. A person's last will is perhaps the most important document that they will ever sign in their lifetime. The long-term worth of leaving a valid will will always exceed the cost of a new electronic device.

Conclusion

The failure to properly consider all aspect of estate planning, take proper advice and have a professionally prepared will, can have a range of unintended or adverse consequences to your family and estate.

Footnotes

1Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

2 under Section 18 of the Succession Act 1981 (QLD), which has its equivalent in Western Australia in section 32 of the Wills Act 1970

3 Re Yu [2013] QSC 322 at [4]-[5]

4 Samuel William Martin as Executor of the Will of Stephen Alan Jones v Young [2017] WASC 202

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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