Queensland Court finds unsent text message counts as a Will

We have previously reported on a case where the Queensland Supreme Court ruled that a will typed into the notes app on an iPhone was legally valid.

Just recently, the Queensland Supreme Court has again been asked to consider whether an informal will found on a phone is valid.

The application before the Supreme Court of Queensland concerned an unsent text message found in the drafts folder of the deceased man’s mobile which was found near his body.  The 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”

The abbreviation MRN190162Q matched the deceased initials and date of birth. There was a paperclip symbol on the left hand side of “My will” and a smiley face on the other side.

Dave Nic was a reference the deceased’s brother and Jack was the deceased man’s nephew, the son of Dave Nic.  If the Court ruled that the message was not a will then the estate would have been divided between the deceased’s man wife and his son.

The deceased man’s wife applied to the Supreme Court of Queensland to manage her husband’s estate arguing that the text message did not constitute a will.  She argued that the fact that the deceased had not sent the text message as evidence that he had not made up his mind and also relied on the fact that she and the deceased had a difficult relationship and that he had not made a will despite an earlier suicide attempt.

On the other hand, the respondents, the deceased’s brother and nephew argued that the text message was described as ‘my will’ and contained details reflecting the intention that it operate as a will, it was clear that it was to have effect upon death and argued that there was no indication that the deceased lacked testamentary capacity.  They further argued that the fact that the text message was not sent does not indicate that it was not intended to have effect and said that the likely intent was for the text message to not be found until after his death as if it had been sent before then his family would have attempted to take steps to try and stop him taking his life.

In the decision, Justice Brown says that she was satisfied that the deceased intended that the text message operate as his will on his death due to the following circumstances:-

• 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;
• That the deceased’s mobile phone was with him in the shed where he died;
• 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;
• 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
• He had not expressed any contrary wishes or intentions in relation to his estate and its disposition from that contained in the text message.

Justice Brown considered that the fact that the message was saved as a draft and not sent was not evidence that he did not wish for the text message to be operative as his will but rather that he did not want to alert his brother and that he intended the text message to be discovered when his body was found.

The assets of the deceased when he died were identified as:-

• A house which was not the subject of a mortgage;
• An AMP superannuation account;
• An Australian Super account;
• Household effects;
• Possible membership of a class action.

The superannuation may not have formed part of the estate and the wife had applied for the death benefits to be paid to her as the deceased’s spouse.  His estate was therefore a relatively small estate.

This may not be the end of the matter as the deceased’s wife will now be entitled to bring a family provision application against the estate.

Although in these circumstances the text message was found to be a will, this is certainly not recommended.

This case highlights the vast amount of evidence that is required to be produced by both sides to overcome the significant hurdles to prove that the text message was in fact a will.  The costs, both financial and emotional for both sides will have been significant.  These costs as well as the delay and uncertainty would have been spared if the man had his will properly drafted.

We strongly recommend our clients see their lawyer at Macrossan & Amiet to make a will if you do not have one, or consider updating your will if it has not been made recently or there has been a significant change in circumstances.