Unsent text message an informal will?

In the case of Re Nichol; Nichol v Nichol [2017] QSC 220, the deceased died without a valid formal will but made and saved an unsent text message on his mobile phone moments before taking his own life. The contents of the text message addressed to the deceased’s brother read as follows:

“Dave Nic you 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 Will Dispute

The deceased’s brother and nephew argued the unsent text message was considered an informal will and the deceased’s assets should then be distributed in accordance with the unsent text message.

The deceased’s widow argued that the text message was not an informal will because the text message was never sent. The deceased estate should then be distributed in accordance with the rules of intestacy where the deceased estate would be left to the widow and the deceased’s estranged son.

The Outcome

The Court ruled in favour of the deceased’s brother and nephew based on the following circumstances that the deceased did intend the text message to be a document with his final testamentary intentions:

1. Text message was created on or about the time the deceased contemplated death to the extent that he even indicated where he wanted his ashes to be places;
2. Deceased mobile phone was found near where he died;
3. Deceased addressed how he wish to dispose his assets and expressly excluded the widow and estranged son;
4. The details of the text message included directions as to where was cash to be found, that there was money in the bank and the card pin numbers, as well as the deceased’s initials with his date of birth and ending the documents with the words “my will”; and
5. Deceased did not express any contrary wishes or intentions in relation to his estate and its disposition from that contained in the text message. 

The Lesson

To minimise the risk of your estate ended up in litigation, your loved ones increased emotional toll and paying significant legal costs that would diminish the value of your estate, it is imperative that a valid will be made.

In New South Wales, a Will is considered a valid Will if it complies with the legal requirements in section 6 of the Succession Act 2006 (NSW). A valid Will:

1. Must be in writing and executed by the Will-maker or by some other person in the presence of and at the direction of the Will-maker;
2. The Will-maker’s signature is made or acknowledge in the presence of two or more witnesses who are present at the same time;
3. At least two of the witnesses attest and sign the will  in the presence of the Will-maker (but not necessarily in the presence of each other;  and
4. The signature of the will-maker or person executing in the presence and at the direction of the Will-maker must be made with the intention of executing the will.

We can help