Which case won?

The case for the wife
  • 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.
The case for the brother (and nephew)
  • 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
Case A Case B

Case B won. You were right!

How people voted
case a30%
case b70%

Expert commentary on the court's decision

"The court found that the informal nature of the document did not exclude it from being a representation of the man’s testamentary intentions."
Court finds that unsent text message is a valid will

In the case Nichol; Nichol v Nichol [2017] QSC 220, the court found that the text message was a valid will and it was accepted to probate.

In previous cases, the court has stated that an informal will that has not been executed in accordance with the Succession Act may be admitted to probate if certain conditions are met:

  • There was a document.
  • The document purported to embody the testamentary intentions of the relevant deceased.
  • The evidence satisfies the court that either at the time of the subject document being brought into being, or, at some later time, the relevant deceased, by some act or words, demonstrated that it was her/his then intention that the subject of the document should, without more on her, or his, part operate as her/his will.
  • The person had testamentary capacity at the time of creating the document.
Text message found to embody man’s “testamentary intentions”

The court found that the text message was a document.

The fact that the man, Mr Mark Nichol, described the text message as “My will”, identified his assets, referred to why the wife should not be provided for, stated his pin number for accessing the cash in the bank and identified where he wanted his ashes did encapsulate his “testamentary intentions”.

The court found that the informal nature of the document did not exclude it from being a representation of Mr Nichol’s testamentary intentions.

Purpose of text message was to dispose of property after man’s death

In the view of the court, Mr Nichol did intend the document to operate to dispose of his property upon his death. This was because the text message was created at the time he was contemplating his death, the mobile phone was with him in the shed where he died, he addressed how he wished his assets to be disposed of, he specified that he did not want his wife to receive anything, and the text message was quite detailed, including his bank account pin number and date of birth.

An additional factor which supported this view was that according to the evidence, Mr Nichol had not expressed any wishes which were inconsistent with those set out in the text message.

Did the man have testamentary capacity when he composed the text message?

Finally, the court determined that Mr Nichol did have testamentary capacity at the time of creating the text message because there was no medical evidence of a lack of mental capacity.

While there was evidence that he suffered from depression and had previously attempted suicide, there was no evidence that he was acting erratically or irrationally, or that he was so afflicted by depression that it was affecting his ability to think or function, or that he did not intend the text message to operate as a will.

The judge in this case said the fact that the text message was unsent did not mean that Mr Nichol did not intend for it to operate as his final will, but instead that he did not want to alert anyone to the fact that he was about to commit suicide.

Importance of preparing a formal will

The result in this case does not deny any person who is left out of a will the right to bring a family provision claim against the estate if they are an eligible person under the Succession Act – that is, a spouse, de facto spouse, child or grandchild of the deceased. In this case Mr Nichol’s wife and son both had the right to make a family provision application.

This case highlights the importance of preparing a formal will. Preparing your will with your lawyer can prevent lengthy and expensive litigation.

For more information please see How do you deal with an intestate estate? Contesting an estate without a will.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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