Court accepts unsent text as will ...

Court accepts unsent text as will, costing estate ‘tens of thousands’ | Nest Egg

 

This is a sad case where a man committed suicide.
A text message or other unsigned and unwitnessed document could only be a will in exceptional circumstances.

 

How do they know someone didn't find the body and start typing the text on his phone and place it back beside him?

 

You will have to read the case to find out. May have been password locked, or the phone found on the body and the circumstances showed it must have been only him that had access.

 

Plus the fact that the text contained the PIN number for his bank card for the reader to withdraw cash from said account. This point gives similar weighting to a signature as it is supposedly a confidential password.

Also he gave directions to find hidden cash. Then set out varifiable fact as to why he didn't want his female partner to inherit.

If it was a fraud it was well thought out. On balance the correct decision was made in my view.

 

Unsent text on mobile counts as a will, court finds

Law changed in 2006
Queensland Law Society president and succession law specialist Christine Smyth said the law was changed in 2006 to allow for less formal types of documents to be accepted as wills.

"It used to be the case that if you did not strictly comply with the legislation as to the drawing of a will, it would not be considered a will," she said.

Ms Smyth said while it was accepted in this case, writing a will in a text message was "absolutely not" recommended.

"As you read through this case, you get a sense of the amount of evidence that has to be produced to satisfy a court," she said.

"If a person hasn't drawn a formal will, there are some significant hurdles which must be overcome to establish that the document that looks like a will, is in fact, a will."

 

If you are free, read:

https://archive.sclqld.org.au/qjudgment/2017/QSC17-220.pdf Re Nichol; Nichol v Nichol

 

Notwithstanding the absence of medical evidence in the circumstances, I find that on the balance of probabilities the respondents have established that the deceased had testamentary capacity at the time of creating the text message. [58] That leaves the question of whether the evidence is sufficient to satisfy the Court that it was the deceased’s intention that the unsent text message should, without more on his behalf, operate as his will. The evidence must be scrutinised carefully and the Court must be satisfied that, on the balance of probabilities, the deceased wanted that particular draft to be his final will and did not want to make any changes to the document.36 [59] The following circumstances satisfy me to the requisite standard that the deceased did intend the text message, without more, to operate as his final will on his death at the time he completed it on or about 10 October 2016: (a) The fact that the text message was created on or about the time that the deceased was contemplating death such that he even indicated where he wanted his ashes to be placed; 37 (b) That the deceased’s mobile phone was with him in the shed where he died; (c) That the deceased addressed how he wished to dispose of his assets and expressly provided that he did not wish to leave the applicant anything; (d) The level of detail in the message including the direction as to where there was cash to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending the document with the words “my will”; and, (e) He had not expressed any contrary wishes or intentions in relation to his estate and its disposition from that contained in the text message. [60] Even though the message did not refer to the appointment of an executor that does not dissuade me from concluding he intended the text message to operate as his will upon his death. The text message addressed the disposition of his assets (although he may have misunderstood the position with respect to his superannuation) and was specifically identified as his will. The terms of the text message reflect that the 36 Lindsay v McGrath [2016] 2 Qd R 160 at [60]; Fast v Rockman [2013] VSC 18 at [48]. 37 The fact he wished his ashes to be placed with his second wife is consistent with his mother’s evidence that he had never got over her death from cancer and that he was estranged from the applicant at the time. 13 deceased wished the document to be his final will and was not merely an emotional expression of wishes. [61] I do not consider the fact that the message was saved as a draft message38 and that he did not send it, is evidence that he did not wish the text message to be operative as his will. Rather, I find that having the mobile phone with him at the place he took his life so it was found with him and not sending the message, is consistent with the fact that he did not want to alert his brother to the fact that he was about to commit suicide, but did intend the text message to be discovered when he was found. [62] The surrounding circumstances also support the terms of the text as representing his testamentary intentions and that he intended it to be operative as his will, without more on his part.

 

I wonder who looked at the draft messages - maybe because he'd taken his own life that was how that happened?

 

Under NSW law too the courts can deem almost any document to be a will:
SUCCESSION ACT 2006 - SECT 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

 

The Coroner/Police would have look into all the evidence.

 

Text message [12] The deceased’s mobile phone was found by the applicant on a work bench in the shed where the deceased’s body was found. The following day, Alicia McDonald, a friend of the applicant, at the request of the applicant accessed the mobile phone to look through the contact list to determine who should be informed of the deceased’s death. She informed the applicant she had found an unsent text message. The applicant informed Bradley Nichol and Jack Nichol, who took a screen shot of it.9 [13] A copy of the text message is exhibit A of the applicant’s affidavit. 10 It reads: “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” [14] The abbreviation “MRN190162Q” matches the deceased’s initials and date of birth, 19 January 1962. There is a paperclip symbol on the left hand side of “My will” and a smiley face on the other side.

 

Interesting