By Dani Jones
The recent decision of Re Nichol; Nichol v Nichol and Anor
The recent Supreme Court decision resulted in an unsent text message being classified as a Will and admitted for probate.
A brief overview of the facts is:
- The deceased tragically took his own life and an unset text message found in his phone was held by the court to constitute his last Will.
- The deceased, who was survived by his wife and a son, wrote a text message to his brother (which was unsent) stating he wanted his brother and his nephew to receive his house, superannuation and other assets and that his wife should only receive her own personal belongings and assets in the event of his passing.
- The deceased and his wife had a “on again off again” relationship and they had separated some two days before his death.
The Application to have the unsent message declared to be the last Will of the deceased was brought by the deceased’s brother and his nephew and was opposed by his wife. The Judge ruled that the unsent text message constituted as a Will as it satisfied the following criteria:
- The unsent text message was created on or about the time the deceased was contemplating his death;
- The deceased mobile was within him when he died;
- The text message had a large level of detail about the assets, provided direction as to his pin number and was labelled “my Will;” and
- The deceased had not expressed any contrary wishes or intentions in relation to the disposition of his assets.
The above case, and the current trend in case law, shows that more and more informal documents are being admitted into probate as Wills.
With this being said, the legal costs and time delays associated with trying to prove an informal document was intended to be “the last Will” is growing tremendously. If a person’s intentions are not clear, and an informal Will is not prepared and executed appropriately, a lengthy and expensive Application is often needed to prove that such document is a Will.
Small and large estates alike can be the subject of expensive litigation and sometimes after the legal arguments are finalised, the estates are dwindled down to almost nothing.
My taking on the above case is that you can never be too careful when writing down ideas or thoughts about your wishes/ intentions when you pass away. Even if you are sure of your thoughts and create an informal document that clearly describes these, if the document does not have the formal qualities of a Will as prescribed by legislation, such document will need to be scrutinised and proven before it can be accepted. Making an appointment with a legal professional to prepare a Will may seem like a waste of time and money now but in the long run, will ensure certainty and the smooth administration of an estate for your loved ones.
For further information or to discuss your Will, please feel free to contact Dani Jones on [email protected] or 07 3211 2233.