On Monday, the Brisbane Supreme Court (Trial Division) ruled that an unsent text message qualified as the valid last will and testament of Mark Nichol, a 55-year-old Australian man who unfortunately took his own life in October, 2016. The deceased had a troubled relationship with his wife and son, and the unsent text message left all of his possessions to his brother and nephew.

The deceased’s widow brought an application for letters of administration on intestacy, while the deceased’s nephew and brother brought an application seeking a declaration that the unsent text message constituted the valid testamentary instrument of the deceased and thus sought letters of administration with a will.

Section 18 of the Succession Act 1981 (Qld) provides the Brisbane Supreme Court with broad discretion to find that a document (or portion thereof) forms part of the last will and testament of the deceased, and allows to Court to rely on evidence about the deceased’s testamentary intentions:

(1) This section applies to a document, or a part of a document, that –

(a) purports to state the testamentary intentions of a deceased person; and

(b) has not been executed under this part.

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to –

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.

In finding that the text message was intended as a will, the Court relied on the reference to “will” in the text message, the date of the message, and the deceased’s electronic signature thereof, as well as evidence about the deceased’s estranged relationship with his wife and son that tended to suggest he did not intend for them to inherit his estate.

This scenario would play out very differently in Ontario based on our current succession laws. In order for a holograph will to be valid in Ontario, it must meet the formal requirements of the Succession Law Reform Act, R.S.O. 1990, c S.26, which holds at s. 6 that: “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”

As the law continues to evolve to new technologies, the Ontario courts may have to grapple with the use of text message and social media evidence in estates and trusts cases. For the moment, however, a would-be testator should reach for good old fashioned pen and paper to make valid holograph will or codicil in Ontario.

The full text of the Brisbane decision may be found here: https://archive.sclqld.org.au/qjudgment/2017/QSC17-220.pdf