An unsent text message on the phone of a deceased man was found to be a valid Will in a decision handed down by the Supreme Court of Queensland on 9th October 2017.
Before taking his own life in October 2016, the 55 year old deceased man drafted a text message to his brother on his mobile phone which said:
“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 3636
The deceased’s widow made an application to the Court to be appointed as the executor of the deceased’s estate on the basis that the deceased died without a valid will. The brother and nephew of the deceased made an application that the unsent text message on the phone of the deceased should be treated as his will.
The deceased had been married to his wife for one year, and they had been together for over three years when he passed away. It was common ground that the relationship had problems and that the deceased had left his wife several times, most recently just two days prior to his death. There was evidence to suggest that his wife had taken him to his mental health appointments, and they had spent the weekend immediately before his death together.
What is a will?
There was no evidence of any other document or will prepared by the deceased.
The deceased’s brother gave evidence that he had spoken to the deceased around Easter 2016, and the deceased apparently told him that he wanted him and the deceased’s nephew to have all of his possessions including his house and superannuation if anything was to happen to him, and that his wife was to have nothing.
The position at law
The law has changed over time to recognise less formal documents can be accepted a valid will. This is in contrast to the earlier position which was that a person’s will has to be in writing and signed in front of two witnesses.
The Court will consider three factors when determining whether a document is a valid will:
- Was there a document?
- Did that document purport to embody the testamentary intentions of the relevant Deceased?
- 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?
How the law was applied
The Court was satisfied that the unsent text message was a document, and also considered there was evidence to suggest the text message included testamentary intentions (intentions about what is to be done with a person’s property upon their death). The use of the words “my will” at the bottom of the text message and the reference to various assets and how they were to be distributed were considered enough to amount to testamentary intention.
The deceased’s widow argued that the deceased did not intend for the text message to operate as his will as he did not send it. The Judge did not accept this and instead made the point that the deceased had his phone with him at the time of death, and he may have decided not to send the message to his brother as it would have alerted him to the fact he was about to commit suicide.
The Court found that the text message was intended by the deceased to operate as his will.
To read the full judgment, click here.
What does this case mean for you?
This case demonstrates the importance of a valid will. Having a solicitor prepare your will to ensure it is compliant with the relevant laws and accurately reflects your intention will provide you with security that your estate will be administered in accordance with your wishes. In this case a properly executed will could have saved the significant costs and delay of taking the issue to the Court.
We offer very reasonable fees for an estate plan review and will and EPOA preparation.
The cost involved will depend on individual circumstances and how complex the Will needs to be in order to effectively deal with your individual circumstances. The will is only one element of a broader process.
When you consider the peace of mind you will have in knowing everything is in order in the event of your death; the cost of drafting your Will is not an expensive outlay.
Contact us on (07) 3236 0001 to arrange a consultation.