The Facts

Man dies without a formal will

A Queensland man took his own life, leaving behind his wife and several family members.

The man and his wife were married for one year but had been in a relationship for three years. Their relationship was rocky and she had left him on at least three occasions, the final time being some two days before he committed suicide. It was suggested that the wife had said she would leave the man to return to her former husband.

The man did not leave a formal will prepared in accordance with the Succession Act.

Unsent text message found on mobile phone after man's death

Upon the man's death, an unsent text message was found on his mobile phone. The text message said:

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



My will

The abbreviation "MRN190162Q" matched the man's initials and date of birth. The date 10/10/2016 was the day that his body was found.

Assets divided differently if no valid will

Under the Succession Act, someone who dies intestate (that is, without a will) has their assets distributed in accordance with a next of kin type of structure. In this case, the man's estate would have been divided between his wife and his son, with whom he did not have a close relationship and whom he had not seen for some months prior to his death.

However, the man's unsent text message stated that he wanted his house and superannuation to go to Dave and Jack (his brother and nephew) and explicitly excluded his wife (Julie) from inheriting his assets.

Widow argues that her husband died intestate

After the man's death, the widow took legal action, arguing that the unsent text message was not a valid will and that her husband should be considered to have died intestate. It was up to the court to determine whether the unsent text message amounted to a valid will.

Case a - The case for the wife Case b - The case for the brother (and nephew)
  • My husband did not intend the text message to operate as his will because he did not send it. If he intended it to take effect, then he could have sent it to authenticate his testamentary intentions.
  • My husband and I had a rocky relationship, but I always returned. My most recent departure was just another hiccup in the relationship and my husband did not actually intend to leave me out of his will.
  • My husband suffered from depression and had previously attempted to commit suicide, therefore his mental capacity was diminished at the time of creating the text message.
  • The court should determine that the unsent text message is not a valid will and that my husband's estate should be dealt with according to the laws governing intestacy.
  • While my brother did suffer from depression, there is no medical evidence to indicate that he did not have the mental capacity to make a will.
  • My brother's text message states clearly that he wished his estate to pass to me and my son. It specifies just as clearly that he did not want to leave assets to his wife. This was completely consistent with what my brother had told me were his intentions while he was still alive.
  • The details in the text message about where the ashes were to be scattered, where cash was kept, what the cash card pin number was and the words "my will" show that my brother intended the text message to be his will, to take effect after his death.
  • The reason my brother didn't send the text was he knew that I would try to stop him committing suicide.
  • The court should determine that my brother's unsent text message is a valid will and accept it to probate.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the wife
Vote case B – the case for the brother (and nephew)

Anneka Frayne
Will disputes
Stacks Law Firm

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.