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When is a Will a Will?

Section 8 of the Succession Actprovides that a document (or part of a document) that “purports to state the testamentary intentions of a deceased person and has not been executed in accordance with the provisions of the Succession Act 2006 can be deemed to be the deceased’s Will if the Court is satisfied that the person intended it to form his or her Will”.

On 9 October 2017, the Supreme Court of Queensland in Nichol v Nichol and Anor determined that a text message on the mobile phone of the deceased was deemed to be his Will. The unsent text message was made (apparently) sometime prior to 11 October 2016. The mobile phone with the message was found with the deceased when he was discovered on 10 October 2016. Tragically, the deceased took his own life. The message read as follows:

”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
My will”

The abbreviation MRN190162Q matches the deceased’s initials and date of birth.

The Court accepted that the text message was intended by the deceased to operate as his final Will on his death. The reasons given were:-

  • The fact that the text message was created on or about the time that the deceased was contemplating death such that he even indicated where he wanted his ashes to be placed;
  • That the deceased’s mobile phone was with him in the shed where he died;
  • That the deceased addressed how he wished to dispose of his assets and expressly provided that he did not wish to leave his estranged wife anything;
  • The level of detail in the message including the direction as to where there was cash to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending the document with the words “my Will”;
  • That he had not expressed any contrary wishes or intentions in relation to his estate and his disposition from that contained in the text message.

The court was not concerned that there was no appointment of executor and also was not swayed by the argument that as it was not sent then it could not be his Will.

Although this case was decided in Queensland, it is likely that a similar decision would have been reached in the New South Wales Supreme Court. The relevant provisions of the Succession Act 1981 in Queensland are very similar to the relevant provisions of the Succession Act 2006 in New South Wales.

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