Draft text message found to be a valid Will

On 9 October, a draft text message was accepted as a valid Will by the Brisbane Supreme Court.

Mark Nichol, a 55 year old Australian man drafted a text leaving everything to his brother and nephew to the exclusion of his wife. The text message was found on his mobile phone after he had died. The message read [sic]:

“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 xxx 10/10/2016 My will”

The Testator committed suicide shortly afterwards.

Typically, the requirements for a Will to be valid in Queensland, Australia, are similar to those in England and Wales – it must be signed by the Deceased and witnessed by two witnesses. However, in 2006 the law in Queensland was changed to allow less formal types of documents to be considered as a Will where the document clearly indicates that the Testator meant the document to be a Will. The Supreme Court found that this was the case in these circumstances, for the following reasons:

  • the Testator had his phone with him when he died
  • he clearly stated what he wanted to give and to whom
  • the text was drafted when the Testator was contemplating his death
  • the text was stated to be his Will, and he had left no contrary wishes or intentions. 

This decision follows a decision which upheld a DVD as a Will.

The Australian decision will have no direct effect on the law in England and Wales, but it provides an interesting insight into the possible consequences of the proposed changes to the law governing Wills in England and Wales currently being considered by the Law Commission. A key feature of those proposed changes is to facilitate Will making, including in electronic format, and to allow the Courts to uphold less formal documents as Wills where the Testator's intentions are clear.

Although many of us in the industry support the proposed changes, this case will send a shiver of uncertainty down the spine of the legal profession. Let's not forget the text message 'Will' was a draft and thus had not been sent. Legal formalities serve an important purpose and I would be concerned if the proposed changes in England and Wales lead to those being so blatantly disregarded. I would also query whether we would want to embrace a system which allows testators to make a Will of their own accord, where there can be no checks as to undue influence, knowledge and approval and of course, the testator's capacity at the time of making the Will.

It is interesting to note that the Australian version of our Inheritance (Provision for Family and Dependants) Act 1975 means that the excluded wife will still be able to bring a claim for reasonable financial provision from his Estate, in the same way had the testator been domiciled in the UK.

For more information please contact Tony Cockayne, Head of the Disputed Wills & Trusts team on 01392 687601 or email tony.cockayne@michelmores.com.