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An Unsent Text Message Can Count as a Will – But at What Price?

By 17 October 2017November 13th, 2019Wills & Estates

In Re Nichol; Nichol v Nichol [2017] QSC 220, the Supreme Court of Queensland ruled that an unsent text message on the mobile phone of a deceased person, could be treated as a Will pursuant to section 18 of the Succession Act 1981 (Qld).

The effect of the text message was to bequeath the deceased person’s Estate to his brother and nephew, rather than to his wife of one year, with whom he had had a difficult relationship. The mobile phone with the unsent message was found with the deceased when he was discovered after tragically taking his own life. The deceased had made no formal Will during his lifetime.

Generally there are very strict execution requirements for a Will. It must be in writing, signed by the person making it, dated when it is signed, and witnessed by two independent witnesses. If these formalities are not complied with, the Will may not be valid.

The outcome of the case is a surprise for Estate lawyers, who meticulously ensure that the Wills they draft for their clients comply strictly with the legislative requirements.

The case of Re Nichol shows that the courts are endeavouring to keep up with modern times, where it is becoming common for people to record their feelings and wishes in electronic form. The general perception that a binding legal document must display a handwritten signature is fast going out of fashion. In response to the changing times, courts are taking a more flexible approach to Wills that are not executed in accordance with the traditional requirements.

The High Price of a Cut-Price Will

However, the court’s decision in Re Nichol does not mean that there is no need to make a formal Will.

In circumstances where a Will is properly drafted and executed, having complied with the strict legislative formalities, the process of Estate administration is much more smooth and inexpensive.

There is no doubt in this case that a substantial portion of the Estate would have been spent in litigation costs. There would also have been significant stress for all parties involved.

The relatively small cost to have your Will properly drafted and executed while you are alive, could save your Estate thousands of dollars in litigation costs after you die.

What Did the Deceased’s Brother and Nephew have to Prove?

In limited situations, an informal document that purports to state the testamentary intentions of a deceased person can be classified as a Will, or part of a Will. The Court must be satisfied that the person really intended that document to be a Will.

Proving that a person really intended an informal document to be a Will is a strenuous task.  It involves compiling evidence to prove complex legal concepts, including the intent to make a Will and the testamentary capacity to make a Will.

In Re Nichol, after considering all of the evidence, the court found that the deceased had testamentary capacity and that the text message was intended to operate as his Will upon his death.

The Court also decided that almost all of the costs of the parties to the litigation would be paid out of the deceased’s estate. These costs would have been substantial.

Delaney & Delaney has over 100 years’ experience drafting Wills, advising on Estate planning, and administering Estates. We welcome you to contact us today so that you have the peace of mind that your wishes are in a form that the Court will simply accept as valid.

The case of Re Nichol can be accessed here.


By Ingrid McCabe

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.