In October 2017 the Supreme Court of Queensland allowed an unsent text message to be the final Will of the deceased who tragically took his own life. The text message was made shortly before he died.
There was no written Will. Two competing applications were before the court: one by the deceased’s widow (a four-year seven month “rocky” relationship) and the other by the deceased’s brother and nephew who claim that the unsent text message was the “testamentary intention” of the deceased.
For a Will to be valid it needs to be in writing and executed by the deceased and witnessed by two other adults.
However Section 18 of the Succession Act 1981 (Queensland) allows the court to look at other documents/evidence of the deceased’s testamentary intentions.
The court reviewed previous case law stating:
“The classic test for testamentary capacity was enunciated in Banks v Goodfellow. The relevant principles were restated by Powell JA in Read v Carmody:
The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;
The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;
The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;
The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.”
The mobile phone was found on a workbench near the deceased’s body. The text read:
“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”
There was also a paperclip symbol on the left side of the words “my Will” and a “smiley face” on the other side.
It was submitted that because the deceased did not send the text it meant that the deceased had not made up his mind and should not be regarded as a “testamentary intention”.
The court decided that the text message operated as the deceased’s final will.
A text message is an electronic document and satisfies the definition of “document” in section 18.
The court took note of the fact that the text:
said “my will” at the bottom of the text;
identified house and superannuation as assets;
identified bank accounts and provided pin numbers; and
said where he wanted his ashes placed.
Despite the fact that the deceased took his own life, the court found on the balance of probabilities that the deceased had testamentary capacity at the time of creating the text message.
See Re Nichol; Nichol v Nichol  QSC 220 (9 October 2017)
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