Unsent SMS Wills - Are the Floodgates Now Open?

In the case of Re Nichol; Nichol v Nichol & Anor [2017] QSC 220, the court was asked to consider an application for a declaration that an unsent text message on the mobile phone of Mark Nichol, the deceased, be treated as a Will pursuant to s 18 of the Succession Act 1981 (Qld) and the usual Will execution requirements be dispensed with.

The mobile phone with the message was found with the deceased when he was discovered by his wife, Julie, having taken his own life. The deceased and his wife had been married for one year and had been in a relationship for three years and seven months. The relationship had problems and the wife had left the deceased on at least three occasions, the final time being some two days prior to his death. Notwithstanding that the wife had moved out, she still made arrangements to take the deceased to his mental health appointments and they spent the weekend prior to his death together, cleaning garden clippings and boxing books for Lifeline. The deceased also had a son Anthony. The deceased was also survived by, amongst others, his brother Bradley and his mother.

There was no evidence of any other Will. If the intestacy rules applied, the deceased’s estate would have been divided between his wife and his son, Anthony.

In a previous case of Lindsay v McGrath [2016] 2 Qd R 160 the Queensland Court of Appeal adopted three conditions for the execution requirements of a Will to be dispensed with, as follows:

“(a) was there a document,

 (b) did that document purport to embody the testamentary intentions of the relevant
      Deceased?

 (c) did the evidence satisfy the court that, either, at the time of the subject document being
      brought into being, or, at some later time, the relevant Deceased, by some act or words,
      demonstrated that it was her, or his, then intention that the subject document should,
      without more on her, or his, part operate as her, or his, Will?”

The deceased’s mobile phone was found by his wife on a work bench in the shed where his body was found. The following day, a friend of the wife at her request accessed the mobile phone to look through the contact list to determine who should be informed of the deceased’s death. She informed the wife that she had found an unsent text message. The wife informed Bradley and his son Jack, who took a screen shot of it. The text message read:

“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
MRN190162Q
10/10/2016
My will”

There was also a paperclip symbol on the left hand side of “My will” and a smiley face on the other side.

There was no dispute that the text message was addressed to the deceased’s brother, David, whose contact details were stored in the deceased’s mobile phone under the abbreviated name “Dave Nic”. However, while the wife accepted that the text was testamentary in nature, she argued that the court could not be satisfied, on the balance of probabilities, that the deceased by some act or words, demonstrated that it was his then intention that the text message, should, without more on his part, operate as his Will, particularly due to the fact that the deceased did not send the text message, which she argued was consistent with the deceased not having made up his mind.

On the other hand, the deceased’s brother and nephew argued that the document on the mobile phone was intended to operate as his Will, because:

• It was described as “my will” and contained details reflecting that it operate as a will;
• The message on its face showed it was to have effect upon death, with directions given as to where the deceased’s wallet was located and his pin number with respect to his bank account. Those specifics indicated a premeditated intention when drafting the will;
• The fact the text message was not sent did not indicate that the text message was not intended to have effect. Rather, the likely intent of the deceased was that the text message be found after he had killed himself. If he had sent that message before he took his life then David or Jack would have certainly attempted to take steps to try to stop the deceased.

Looking at the three conditions for the execution requirements of a Will to be dispensed with, the court decided that:

• The text message was an electronic document and the text message did satisfy the definition of document;
• The text message did state his testamentary intentions, because:

    (a) The text message says at the bottom it is “my will”;

    (b) The message identifies the house and superannuation which are his principal
         assets about which he also says “keep all that I have”;

    (c) He refers to “Julie will take her stuff only she’s ok gone back to her ex AGAIN
         I’m beaten”;

    (d) He identifies that he has cash in the bank and provides the pin number; and,

    (e) He identified where he wanted his ashes placed.

• The deceased did intend the text message, without more, to operate as his final Will on his death at the time he completed it, because:

    (a) 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;

    (b) The deceased’s mobile phone was with him in the shed where he died;

    (c) The deceased addressed how he wished to dispose of his assets and expressly
         provided that he did not wish to leave the applicant anything;

    (d) 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”;

    (e) He had not expressed any contrary wishes or intentions in relation to his estate 
          and its disposition from that contained in the text message; and

    (f) In particular, the facts that the message was saved as a draft message and that
         the deceased did not send it, was NOT evidence that he did not wish the text
         message to be operative as his Will. Rather, having the mobile phone with him at
         the place he took his life so it was found with him and not sending the message,
         was consistent with the fact that he did not want to alert his brother to the fact that
         he was about to commit suicide, but did intend the text message to be discovered
         when he was found.

Therefore, in all of the circumstances, and on the balance of probabilities, the court considered that the text message was intended by the deceased to operate as his Will upon his death.

So there you have it – legal principle has again been stretched so as to accommodate the brave new world of new technology so as to ensure that, against all odds, the final wishes of a person who died in tragic circumstances has been upheld, despite the law generally requiring a Will to be in writing and signed by two independent witnesses. May well Justice Susan Brown bask in her new-found celebrity as the harbinger of this modern approach to examining the veracity of documents purporting to bear testamentary intentions!

But let’s consider what the wider implications of the decision might be. Consider the following:

• No-one appeared to raise the possibility that the text message might have been typed by someone other than the deceased;
• Given that the wife (who stood to lose the most from the purported text Will) was the one who found the mobile phone and her friend uncovered the unsent, draft text message before the wife (obviously not realising the import of the message) notified the deceased’s brother, it would have been too easy for her to simply have deleted the draft message. This possibility could easily have been pre-empted by the deceased pressing the “send” button - but the deceased did not do so.
• Further, if the deceased was therefore not concerned that anyone who picked up the mobile phone could have simply deleted the message, and the most likely person to find the phone in the circumstances would most probably have been - and was - his (to be disinherited) wife, maybe it really was because he did not mean it to be his final Will?

Now, the judge only needed to be convinced “on the balance of probabilities”, and that is a very subjective standard of proof indeed since it relies so much on how much weight one puts on the various factors to be balanced against each other.

However, we currently live in a social and legal environment where:

• People are living longer, and with that increase in age comes the greater incidence of elderly people being afflicted with dementia;
• At the same time, the children of those persons who are living longer are also facing the prospect of having to wait until their 60’s or even 70’s before their parents die – giving rise to an increasing phenomenon of “inheritance impatience” amongst that generation of children; and
• By no means coincidentally, there is a corresponding increase in the incidence of elderly persons suffering from financial abuse at the hands of other persons who they might otherwise have been expected to trust – namely their own children, who may hold enduring powers of attorney granted to them by their parents, ironically so that someone they thought they could trust would look after them with their best interests at heart when they grew too old to look after themselves.

Therefore, this trend of dispensing with the very legal principles that were designed to protect against abuses in terms of the forgery of Wills and preventing fraud and the application of undue influence in the making of Wills should be very concerning to all members of our community, not just the legal profession.

And if this decision of Re Nichol; Nichol v Nichol & Anor stands the test of time and is not overruled by a later decision from a court of equal or higher status, the floodgates may well be open to a new form of elder abuse which may profit the perpetrators of “fake Wills” at the expense of the deceased person’s true intended beneficiaries.

For further information or for any other estate planning requirement please contact us on 02 8296 6266 or via email info@supercentral.com.au.