The recent Queensland case of Re Nichol is a reminder that just because a document may not be executed in a traditional ‘Will’ format. It does not always exclude it from being considered the deceased’s final Will.
Valid & Informal Wills – A Refresher
Traditionally for a Will to be considered valid in Victoria is needs to comply with the formalities of s 7 of the Wills Act 1997 (Vic). Broadly this means that the Will must be in writing and signed by the Will maker, a signature must be made with the Will maker’s intention to make the Will, and two witnesses must sign the Will in the presence of the Will maker.
However, Section 9 of the act allows a document which has not been executed in a manner in which a Will is required to be executed, to still be admitted to probate as the last Will of the deceased, if the Court is satisfied that the person intended the document to be his or her Will.
Although the Queensland case soon to be enumerated is not binding on Victorian law, it is very persuasive as the law governing Wills in Queensland is almost akin to Victoria.
Re Nichol; Nichol v Nichol  QSC 220
- The deceased had been with his spouse for over 3 years, but had been married for 1 year. The couple had problems, with the spouse leaving him on multiple occasions, one of which being 2 days prior to his death.
- The deceased committed suicide and his body was found by his spouse next to his mobile phone.
- On the mobile phone a draft message was found stating the date, “my Will”, that he was to make no provision to his spouse, his superannuation and house were to go to his brother and nephew, his ashes were to be placed in the “back garden” and provided the pin to the bank account where his funds were held.
- The actual message is as follows “Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden…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…10/10/2016 My Will”
- The brother and nephew made an application to the Court to have the text messaged recognised as the deceased’s last Will and testament under section 18 of the Succession Act 1981 (Qld) (akin to Section 9 of the Wills Act 1997 (Vic)).
- The spouse claimed that the text message cannot be considered a Will, and as the deceased had no prior Wills, she made an application for a grant of letters of administration in intestacy. If granted, under the laws of intestacy this would give her priority to the Estate.
So to determine whether the document could be considered a Will the court had to determine three conditions.
- Whether there was a document
- Whether the document purported to embody the testamentary intentions of the relevant deceased
- Whether the evidence satisfies the Court that it was the deceased’s intention for the document to operate as his Will
- Document: The court found that under the Acts Interpretation Act 1954 (Qld) the definition of a document includes ‘any material from which sounds, images, writings or messages are capable of being produced’ and therefore the text messaged was considered a document for this purpose.
- Testamentary Intention: In order for a document to embody testamentary intentions, the document must state what the deceased intends for the future of his or her Estate upon their passing. In this case, the draft message stated what was to happen to his superannuation, his ashes, identified the cash in his account and specifically stated that the Spouse was not to benefit. As a result, the Court determined that the text messaged embodied this requirement.
- Operate as a Will: Broadly, the Court determined that the deceased did intend for the draft text message to operate as his Will as (1) the deceased addressed how he wanted to dispose of his assets and specifically who to (2) the text messaged was produced at or around the time the deceased was contemplating death (3) the message was detailed, in so far as it even noted how to access the bank account suggesting that he did not plan to be there to do so, and included his date of birth and the words “my will” (4) the phone was located with the deceased at his time of death and (5) no contrary wishes or intentions in relation to his estate were included in the text message. Further, the fact that the deceased did not send the message did not suggest he did not want it to act as his Will, on the contrary it was simply so that he did not alert the receiver to his suicidal intention.
The Court ordered that the text message be admitted to probate in solemn form in favour of the brother and nephew, and that they be granted letters of administration so to be administrators of the Will.
This case demonstrates that a document which is not signed or witnessed can still be accepted as a valid Will. However, do not use this as authorisation to not comply with the execution and witnessing requirements. The Court for a myriad of reasons may not decide on the same outcome.
If you have any further questions, or there’s a document that you believe qualifies as a Will that you would either like to admit to Probate or contest, please do not hesitate to give the team at Hentys Lawyers a call.