Ever heard of an unsent SMS will?

30/11/2017

The Queensland Supreme Court recently looked at the question of whether an unsent draft text message on a deceased's mobile phone constitutes a Will ((Re Nichol: Nichol & Anor [2017] QSC 220).

In this case, the deceased, Mark, had been married to Julie and had a son from a previous relationship, Anthony. Two days prior to Mark taking his own life, the relationship broke down and Julie moved out of the family home (she had done so on three previous occasions).  Despite the separation, they spent his final weekend together doing housekeeping tasks.

When Julie discovered his body, Mark’s mobile phone lay on a bench beside him.  However, it was not accessed until the following day when a friend of Julie’s tried to look up the contact list to determine who should be informed of his death.  This is when they came across the text message, which they shared with Mark’s brother.  

The text message read:

“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 bank Cash card pin 3636

MRN190162Q
10/10/2016
My will”

There was no evidence that Mark had any other will.

The fight between David (known as Dave Nic) and Julie which played out in Court went as follows: David claimed the SMS was his brother’s Will, which meant that he and Jack should receive Mark’s estate. Julie on the other hand argued the SMS did not constitute a Will and the intestacy laws should apply (which would make her and Anthony the beneficiaries instead).

The Court will hold that the conditions for the execution requirements of a Will be dispensed with only if three elements are satisfied.  

In short these are:

-    there was a document;
-    the document purported to embody the testamentary intentions of the deceased; and
-    the deceased demonstrated it was their intention that the document should, without more on their part, operate as their Will.

Both parties agreed that the SMS was an electronic document which contained the deceased’s testamentary intentions.   
 
The crux of the fight was about whether it could be said that Mark intended for the SMS, without more, to operate as his final Will at the time he completed it.

Among other things, Julie claimed the fact that the SMS was never sent showed Mark hadn’t made up his mind; while David was of the view that Mark did not send the message because that would have alerted David of his intention to kill himself and he would have tried to stop him.  Also, as he’d left his mobile phone next to his body, this act demonstrated Mark’s intention for the message to be discovered subsequent to his death.

In the end the Court found that, on the balance of probabilities, the facts support the view that Mark intended the SMS to operate as his Will upon his death. As a result, Julie and Anthony missed out on the estate.

The case demonstrates the Courts’ readiness to stretch legal principles in order to accommodate the new world of technology to ensure that, against all odds, the final wishes of a person who died in tragic circumstances are upheld.

However, one cannot help but wonder:
 
-    Would the outcome have been different if, for instance, David had found the text message? There is no evidence as to whom typed the message – in fact the issue was never raised.  

-    If the wife had simply deleted the draft message, she would have shared Mark’s estate with his son Anthony.  By showing the message to a third party, she lost it all.

-    Will the decision stand the test of time or will it be overruled by a later decision from another Court?

-    Why didn’t Julie and Anthony make a family provision claim concurrently so that even if the note on the mobile phone was held to be Mark’s Will, they were in a position to immediately mount a challenge?

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.