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
MRN190162Q
10/10/2016
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.
Expert commentary on the court's decision
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:
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.