It’s likely been in your news feed recently that an unsent text message was held by a Queensland Court to be a valid Will. It may seem quite unbelievable to some that this would even happen! On the other hand, maybe it doesn’t?
Reviewing the comments that appear in many of the media articles online reveal a general consensus of confusion among the public that something like an unsent text message could be a valid legal document, let alone a Will.
It wasn’t too long ago that our very own Wills & Estates team at Bennett & Philp were part of the first iPhone Will case where the Court approved a note made on a person’s iPhone to be a valid Will. So, I suppose it’s natural for the legal profession (and anyone acquainted with the legal industry) to not be necessarily surprised at the outcome. But, that depends on who you talk to.
The main theme of the comments by the public found on the articles online was to question the fact that it was “unsent” – did it mean that he didn’t really intend for it to be his Will because he didn’t send it? – and also to question how anyone could be satisfied that someone else didn’t write the message. And, the overwhelming urge to say “Well, maybe I’ll just write my Will on my phone – that’ll save me heaps!” (please don’t! Hear me out first!)
Here’s a bit of a background about the case and an insight into what the Court said in making its decision to uphold the unsent text message.
In the case of Re Nichol; Nichol v Nichol & Anor  QSC 220, sadly a gentleman committed suicide on 10 October 2016 but not before writing a text message to his brother with the following words:
“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 [omitted]
The message was not sent.
Forensic evidence was provided to the Court about the creation of the message. The evidence was that the text message had been created on 10 October (the date of death) and confirmed what was evident on the face of the message and that there was no other document created that might be relevant to the intentions of the deceased gentleman.
The family of the deceased also provided evidence of conversations they had had with him prior to his death about how he wanted his estate distributed in the event of his death. The deceased’s brother, who was the intended recipient of the text message, told the Court of a conversation the deceased had had with him around Easter of 2016 where he was told by the deceased that he wanted his house and superannuation to go to him and Jack (his nephew).
The Court was satisfied to determine that the unsent text message could constitute a ‘document’ in which a Will could be recorded (which is one of the essential requirements) – following the earlier precedent of the iPhone Will case.
The Court also had to be satisfied that the document recorded the deceased’s “testamentary intentions” and that the deceased intended for the document to operate as his Will. The Court was satisfied that the words of the text message were intended to represent how his estate was to be distributed.
Not sending the text
The widow of the deceased claimed that the he didn’t intend for the unsent text message to be his Will and argued this on the basis that he did not send the message. The widow claimed that the deceased could have sent it to indicate that he adopted the message or authenticated the message and by doing so would then have represented his intention for it to be his Will.
In response to this submission and in light of the fact that the deceased had kept the mobile phone with him at the place where he took his life, the Court was satisfied that the deceased keeping his phone near him and not sending the message was “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.” (Paragraph  of the judgement)
Did he have ‘capacity’?
The Court also had to determine whether the deceased had the mental capacity to make a Will. Sadly, the deceased had previously attempted suicide in June earlier that year and some focus was placed on mental state leading up to his death.
The Court was guided by much evidence from the friends and family members of the deceased about the deceased’ behaviour leading up to his death. There was no medical evidence to suggest that the deceased didn’t have capacity.
The Court was satisfied that there was no evidence by those closest to him that described him “as acting erratically, irrationally or being so afflicted by depression that it was affecting his ability to think or function.” (paragraph  of the judgement).
The Court further noted that the deceased’s interactions with his widow, his brother and nephew, prior to his death demonstrated that he was acting and thinking in a rational manner. As a result, the Court was satisfied that the deceased had the capacity to make the Will.
So, what does this all mean?
We all probably acknowledge that we’re living in a different [technological] age that has changed the way we communicate; this includes how we might make our wishes known to others when we pass.
The text message was upheld because the Court was satisfied, by reviewing all the evidence provided by the family and friends, that the text message reflected the deceased’s intentions and he meant for it to be his Will and operate as his Will after he passed away. The words used in the text message were consistent with his earlier conversations with family and friends and appeared to appreciate the extent of his estate (i.e. his assets etc) and disposed of them reasonably in the circumstances.
While the concept of the text message Will appears, at first glance, to suggest that making your Will is as simple as writing it in a text message - it’s really not. Going through this process is incredibly complex and requires a lot of information, money and evidence to be gathered to allow the Court to make a decision on whether to uphold the words as a valid Will.
It also took a year and [likely] lots of money.
The biggest lesson we can offer from this case is not that you can simply write your Will on your phone, but that it takes a court case to try and uphold the deceased’s wishes. This would be devastating for any family.
On top of the overwhelming and confronting process of litigation, there are the costs of the process. While the judgement does not state how much it costed to run this case, the Court did say that the legal costs are to be paid by the deceased’s estate – which would easily be in the tens of thousands. This means that the beneficiaries truly don’t get everything the deceased had hoped – they have to pay the costs of trying to uphold his wishes first.
If someone you know is experiencing depression, or is not acting like their usual self, encourage them to talk to someone today. You can save someone’s life by starting a conversation today and looking out for them.
Call Lifeline on 13 11 14 on their confidential 24 hour crisis support line.