To make a valid will, put simply, it must be in writing, signed by the person making it (called a ‘testator’) and witnessed by at least two adult witnesses. Without more, a document that ticks these boxes will be presumed at law to be a valid will.
However, even if a document does not quite meet these basic requirements, the Supreme Court of New South Wales has the statutory discretion under section 8 of the Succession Act 2006 (NSW) to find that such a document is a deceased person’s last will and testament. To exercise this discretion, the Court must be satisfied of certain elements, including inter alia that the deceased intended the document to operate as his or her last will (commonly referred to as an ‘informal will’).
While the rise of technology like computers has led to some interesting applications of this discretionary power, one of the more interesting of these cases was decided by the Queensland Supreme Court (‘Court’) last month in Re Nichol; Nichol v Nichol & Anor  QSC 220.
Mr Nichol tragically took his own life on 10 October 2016. He was survived by a wife of one year and a son. It was accepted that Mr Nichol and his wife had a difficult relationship that led to his wife leaving him two days prior to his death. Nevertheless, she applied to the Court for a grant of letters of administration on intestacy on the basis he did not leave a valid will. Under the rules of intestacy in Queensland, Mr Nichol’s estate would have been distributed between his wife and son.
Mr Nichol’s brother, David, and nephew Jack (‘Respondents’) brought a competing application that the Court exercise its dispensing power under section 18 of the Succession Act 1981 (Qld) (the Queensland equivalent of section 8 of the NSW Act) in respect of an unsent text message found on Mr Nichol’s mobile phone addressed to his brother 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
Although the text message’s informal nature meant the Respondents had to prove Mr Nichol had the requisite capacity to make a will (‘testamentary capacity’), the Court ruled that Mr Nichol’s suicide did not raise a presumption against such capacity. The evidence before the Court of Mr Nichol’s behaviour leading up to his death and his interactions with friends and family showed he was functioning and thinking normally. Accordingly, the Court was satisfied Mr Nichol has testamentary capacity.
Therefore, since the text message did not meet the basic requirements of a valid will (i.e. it was not witnessed), the onus fell on the Respondents to then prove that the elements under section 18 were satisfied.
Did Mr Nichol intend for the text message to operate as his will?
The parties accepted that the text message was both a document and testamentary in nature, Mr Nichol’s wife disputed that the Court could be satisfied on the balance of probabilities that Mr Nichol intended it to operate as his will. In support of her argument, she relied on the significance of Mr Nichol not sending the text message, which could suggest that he had not yet made up his mind.
On the other hand, the Respondents relied on the text message containing the words “My will” to support their application. They also submitted that the reason Mr Nichol didn’t send the text message was that if he had sent it before he took his life, the Respondents would have attempted to prevent him from doing so. Further, the reason Mr Nichol excluded his wife and son from the dispositions in the text message was his strained relationship with both.
The Court ultimately accepted the Respondents’ submissions over those of Mr Nichol’s wife. As such, the Court decided to exercise its power to dispense with the formal requirements of a will and admit the text message to probate in solemn form as Mr Nichol’s last will for the following reasons:
The text message was created on or about the time that Mr Nichol was contemplating his death such that he even indicated where he wanted his ashes to be placed;
His mobile phone was with him in the shed where he died;
He addressed how he wished to dispose of his assets and expressly provided that he did not wish to leave his wife anything;
The level of detail in the text message regarding his assets; and
There was no evidence that he had expressed any contrary wishes in relation to his estate from that contained in the text message.
The Court made a grant of letters of administration with the will annexed in favour of the Respondents and the costs of all parties was ordered to be paid from the estate on an indemnity basis (except for the costs associated with one appearance by Mr Nichol’s wife).
This case once again highlights the importance of having a professionally prepared will. While the law can make exceptions for informal wills drafted by the public, it is an expensive and uncertain exercise to undertake. The cost of paying a lawyer to draft a will for you can be insignificant compared to the costs incurred in litigation or other complicated court applications.
If you require a will prepared or advice regarding a deceased estate, please contact HPL Law Group on (02) 9905 9500.