On 9 October 2017, a Queensland Supreme Court judge ruled an unsent text message written by Mark Nichol before his death to be a valid will.

The facts

Mark Nichol was married to Julie Nichol for one year and they had been in a relationship for three years and seven months. The marriage was described to be a difficult one, with Julie leaving Mark on three separate occasions, the final time being only days before Mark's death.

Mark suffered depression and attempted to commit suicide in June 2016. Following the attempt, Mark sought counselling and Julie supported him by taking him to his medical appointments and helping him with general household chores. However, in early October, Julie left Mark and moved back in with her ex-husband. On 10 October 2016, Mark took his own life.

Prior to his death, Mark wrote a text message to David on his mobile phone which was found on a work bench in the shed where his body was found. In the message, Mark provided instructions leaving his home, two superannuation accounts, household belongings and a possible interest in a class action to his brother, David Nichol, and nephew, Jack Nichol.

Although he did not send the text message, it had been clearly addressed to David and it ended with the words "My will".

The law

As Mark had no formal will in place, Julie applied to the Queensland Supreme Court for a Grant of Letters of Administration on Intestacy. David and Jack made an application to the Court for the unsent text message to be treated as an informal will.

Julie had argued that the text message was never sent, indicating that Mark had not made up his mind. David and Jack relied on the argument that Mark did not send the text message as he did not want to alert his brother to the fact that he was about to take his life.

Under intestacy rules, Mark’s estate would have been divided between his wife Julie and his son from a previous relationship.

In testing whether an unsent text message could be accepted as an informal will, Judge Brown was satisfied that:

  • a text message does fit within the definition of a 'document';
  • the text message in question clearly outlined Mark's testamentary intentions; and
  • Mark had testamentary capacity at the time of writing the text message.

The Court therefore concluded that Mark had intended the unsent text message to operate as a will and was admitted to Probate in favour of David and Jack.