The recent case of Nichol v Nichol[1] reminds us of the importance of having a formal Will in place and the far reaching consequences, both financially and emotionally for a deceased’s family, in failing to execute a formal Will during their lifetime.

Typically, when a person passes away, a Grant of Probate (where a valid Will is in place) or Letters of Administration (where no Will is in place) will need to be obtained in order for the Deceased’s assets to be dealt with.

In the case of Nichol v Nichol, there was neither a valid Will, nor any Will at all. In this case the family was arguing over the most informal of Wills: the informal Will took the form of an unsent text message (Text), that the Deceased signed off on, using a smiley face emoji, before taking his own life. You can read the full case here.

In Victoria, a Will is generally considered to be a valid and formal Will, if the following execution requirements are met:

  1. the Will maker is 18 years of age or older
  2. the Will maker has testamentary capacity
  3. the Will is in writing and signed by the Will maker
  4. it is the Will maker’s intention that the document be their Will
  5. the Will maker’s signature is made in the presence of two adult witnesses, present at the same time, signed on each page of the Will
  6. the Will is dated and directs how the Will maker’s assets are to be disposed of.

The facts

The case of Nichol v Nichol represents a set of tragic circumstances for both the Deceased and his family, and acts as a timely reminder that having a valid Will in place can minimise the pain and troubles experienced by loved ones throughout the estate administration process.

The Text was addressed to the Deceased’s brother and read 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 the TV and a bit in the bank Cash card pin 3636
  • MRN 190162Q
  • 10/10/2016
  • My will J”

Issue/s in dispute

The Deceased did not have a valid Will in place at the time of his death, but left the Text which was argued by the Deceased’s brother and nephew to be an informal Will.

The Deceased’s widow, argued that the Text did not constitute an informal Will and that the Deceased’s estate should be distributed in accordance with the intestacy provisions, which would see the Deceased’s entire estate being left to her, and the Deceased’s estranged son.

The Deceased’s widow argued that the fact the Text was not sent, indicated that the message was not intended to have effect as the Deceased’s Will.

After considering the evidence put forward by both parties, the Court ruled in favour of the Deceased’s brother and nephew, and accepted the Text as the informal Will of the Deceased, finding that:

  1. the Deceased possessed testamentary capacity
  2. the Text satisfied the definition of a document
  3. the Text set out the Deceased’s testamentary intentions.

The case of Nichol v Nichol saw significant legal fees met out of the assets of the Deceased’s estate.

This case is a timely reminder that having a valid Will in place can minimise significant expenses being incurred by an estate, as well as minimising the emotional toll that litigation can, and often does have on families, when a Deceased has failed to adequately prepare.