There are those people who do not wish to put the time into legally preparing an official Will, but see it is important enough to be written informally on paper, or in some cases, texted.
“Dave Nic you 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 :)”
In the case of Re Nichol; Nichol v Nichol & Anor [2017] QSC 220 the deceased had written the above text message out (including smiley face) and was discovered upon his death. The deceased died without a valid formal will, but made and saved the above text message on his mobile phone moments before sadly taking his own life.
The deceased’s brother and nephew argued the unsent text message should legally be considered a informal will and the assets of the deceased’s should be distributed in accordance with the message.
However, the deceased’s widow argued that the text message was not an informal will as the message was never sent to the intended recipients. She argued that the estate of the deceased should then be distributed in accordance with the rules of intestacy (what happens when you die without a legal will). In this scenario the estate of the deceased would be left to the widow and the deceased’s estranged son.
The Outcome
In her decision, Justice Susan Brown said the wording of the text, specifically including the words “my will” indicated that the deceased knew and understood what he was doing.
Justice Susan Brown expressed that the reference to his house and superannuation, as well as the specification that his widow was to take her own things showed that he was aware of the nature and extent of his estate, which was relatively small.
The court also ruled in favour of the deceased’s brother and nephew based on the following findings:
-
- The text message was created around the same time that the deceased contemplated death
-
- The deceased’s mobile was found near where he died
-
- The deceased addressed how he wished to dispose his assets and expressly excluded the widow and estranged son
- The deceased did not express any alternative wishes or intentions in relation to his estate and it’s disposition from that contained in the message
Informal Will
To be a formal and valid Will a document needs to meet the requirements of Section 6 of the Succession Act [2006] which says that a will is not valid unless:
-
- It is in writing and signed by the testator (lawyer) or by some other person in the presence of and at the direction of the testator, and
-
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and
- At least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
However, despite the above requirements, Section 8 of the Succession Act allows for special circumstances when an informal document can be admitted into probate and gives the Court the power to dispense with the above formal requirements of a Will.
To be admitted into probate, the document needs to clearly state that these are the testamentary intentions of the deceased person – aka that the document lays out what the deceased person wants to do with their assets.
However, informal wills are not automatically considered and you will need to apply to the Court seeking Probate of the informal document, which can be anything ranging from a handwritten note, document or even a text message.
To avoid having your estate ending up in litigation, your family and loved ones increased emotional toll, and paying a significant legal cost that would diminish the value of your estate, it is imperative that a valid will is made. If you have any queries about the difference between valid and invalid wills, please don’t hesitate to contact Owen Hodge Lawyers on 1800 770 780 or by emailing as at [email protected].