The recent Supreme Court of Queensland case of Nichol v Nichol [2017] QSC 220 reveals a rather tragic story. It also serves as useful example of the relating to informal wills.

The deceased, Mark Nichol, was married three times. He became estranged from his first wife and son. His second wife passed away. He was together with his third wife for three years before his death. They had a difficult relationship, and split up a number of times. The deceased attempted suicide, and sought out professional help. His third wife left him again, and moved back in with her ex-husband. Two days later he took his own life.

In the moments before he died, the deceased wrote a text message to his brother but did not send it. After a search, no will could be found.

As is common when a deceased person’s testamentary intentions are not clear, proceedings were commenced. The deceased’s wife (Julie) brought an application for a grant of letters of administration on the basis that the deceased died intestate. In response, the deceased’s brother (David) and nephew (Jack) brought an application that the unsent text message be treated as his will.

The text message reads 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 TV and a bit in the back Cash card pin 3636

MRN190162Q

10/10/2016

My will”

MRN was the deceased’s initials, and 190162 was his date of birth. Expert evidence confirmed that the message was not sent and that it was created prior to the deceased’s death.

If the intestacy rules applied (as the deceased’s wife submitted they should), the deceased’s estate would be divided between his wife and his son.

In order for a document (which can be broad, for example, DVD’s and notes on an iPhone have been treated as wills) to be an informal will, a court must be satisfied that:

  • the document expresses the testamentary intentions of the deceased;
  • the deceased intended that the document act as his will; and
  • he had capacity at the time the document was prepared.

The court found that the first criterion was clearly satisfied as the text message stated “my will”, it identified the deceased’s assets and said “keep all that I have”, it explained why he did not want his wife to inherit, and it identified where he wants his ashes placed.

With respect to the second criterion, the wife argued that it was highly relevant that the text message was not sent. In finding that this element was satisfied, the Court held that the fact the message was not sent, but the phone was found with the deceased’s body, instead indicated an intention that he did not want to alert his brother that he was attempting to commit suicide, which would result in him taking steps to stop him.

Finally, on the question of capacity, the Court noted that suicide does not lead to a presumption against capacity. Rather, the lay evidence before the Court showed that while the deceased appeared to be down and receiving counselling he was able to think and act rationally up to the day he committed suicide, and the message demonstrated that he knew what his assets were and who were the potential people he should consider in making a will.

As all each of the elements were satisfied, the Court accordingly found that the unsent text message was to be treated as the deceased’s final will.

The case is a melancholy reminder of the requirements for informal wills, the wide circumstances where they may be found, and the application for the test for testamentary capacity where a person is at their darkest time.

For all those suffering with their mental health Beyond Blue have a list of resources, including numbers you can call for counselling, available here.