The case of Nichol v Nichol & Anor [2017] QSC 220 (16 June 2017) was a Supreme Court of Queensland (“SCQ”) trial heard by Justice Brown. In this case, the applicant widow of the deceased sought a grant of Letters of Administration on intestacy. The respondents being the brother and nephew of the deceased claimed that an unsent text message found on the phone of the deceased was a valid Will.
Summary
Although still married prior to Mr. Nichol’s death, the applicant, Julie Nichol (widow) had left the deceased two days prior to his death after a tumultuous marriage. Tragically, Mr. Nichol took his own life having written on his mobile phone what the respondents claimed to be a Will in the form of an unsent text message. The text message unambiguously listed the respondents as the beneficiaries of the deceased’s superannuation, house and monetary assets. The respondents sought to have the text message treated as a Will pursuant to the Succession Act 1981 (QLD). The applicant widow disputed the text message was a valid Will and applied for Letters of Administration to administer the estate intestate. The respondents challenged the application on the ground that the unsent text message formed a valid Will. The Court held in favour of the respondents and found the unsent text message was a valid Will.
Relative Law
Acts Interpretation Act 1954 (QLD)
Succession Act 1981 (QLD)
Background
The applicant and the deceased had been in a relationship for three years and seven months. One of those years they were married. The applicant widow left the deceased on three occasions; the final time being two days prior to his death. The deceased had a troubled history with depression and a previous suicide attempt.
After Mr. Nichol’s committed suicide, it was the applicant widow that found his body. His mobile phone was nearby. The phone was given to a friend of the applicant widow who requested that the friend look through the contacts on the phone to see who should be informed of Mr. Nichol’s death. The friend found an unsent text message from Mr. Nichol and told the applicant.
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 applicant widow lodged an application with the Supreme Court of Queensland for Letters of Administration to administer Mr. Nichol’s estate as if Mr. Nichol did not leave a valid Will. This was disputed by the Respondents being Mr. Nichol’s brother and nephew.
Applicant Widow’s Primary Argument
The applicant widow agreed the text message was testamentary in nature; however, the widow argued that on the balance of probabilities the court couldn’t be satisfied that:
- The deceased by some act or words intended that the text message, shouldn’t, without more on his part, operate as his Will; or
- The deceased did not have testamentary capacity at the time he created the text message.
With respect to the first ground, the applicant widow attached great significance to the fact that the text message had not been sent to the respondents, thus, evincing lack of intent. Regarding the second ground, the applicant submitted that because of the deceased’s history of depression and previous attempt at suicide he lacked testamentary capacity at the time. The applicant argued that the text message should be disregarded and the intestacy rules apply. The intestacy rules would provide that the estate be divided between, the applicant widow, Mr. Nichol’s son and Mr. Nichol’s former wife.
Respondent’s Primary Argument
The respondents submitted the following argument to the Court:
- The text message on the mobile phone was described as “my Will” and contained details reflecting that it operates as a Will;
- The message contained directions as to where the deceased’s wallet was and his bank card pin number. It was intended to have effect upon death;
- Finally, that there was no indication that the deceased lacked testamentary capacity;
- There was no evidence of any other Will connected to the deceased, therefore, the competing claims of both parties were to succeed or fail based upon the text message and surrounding evidence;
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The respondents presented expert evidence from Dr. Bradley Schatz, a digital forensic expert, who had examined the deceased’s mobile phone and compiled a report, which stated:
- The text message was unsent;
- The text message had been created at a time prior to 4:25 pm on 11 October 2016;
- The text message was likely saved by someone pressing the back arrow in the message editor; and
- When the message was opened for editing, a paperclip symbol was visible which, when pressed, enables the attachment of a picture.
The evidence of Dr. Schatz confirmed that there was no other document on the mobile phone that would be relevant towards Mr. Nichol’s testamentary intention. It was accepted that the abbreviation “MRN190162Q” in the text message matched Mr. Nichol’s initials and date of birth.
Evidence was provided by one of the respondents, David Nichol, brother of the deceased. David submitted that on or about Easter 2016, the deceased had told him that if anything were to happen, he wanted all his possessions including his house and superannuation to go to the respondents. The respondent submitted that the deceased emphasized that the applicant widow was to have nothing.
The deceased’s siblings and a very close friend of the applicant, Ms. Soares, gave evidence. Ms. Soares gave evidence as to the instability of the relationship between the applicant and the deceased, and confirmed that the applicant had left the deceased on several occasions.
Evidence was provided by the deceased’s siblings, his mother and the applicant widow as to Mr. Nichol’s state of mind just prior to his death. Evidence was submitted that he had been working with his brother in late September and that the day before his death he had been cleaning around the house with the applicant widow. This indicated the deceased was of sound mind prior to his death.
Succession Act 1981 (QLD)
Section 18 of the Succession Act 1981 (QLD) (“Succession Act”) applies to a document, or a part of a document, that, inter alia, purports to state the testamentary intentions of a deceased, and has not been executed under this part. This part provides that a document or part thereof, will, for the purposes of the act form a Will, an alteration of a Will, or a full or partial revocation of a Will, if the court is satisfied the person intended the document or part to form the person’s Will. The court, in making its decision, in conjunction with the document, may have regard to any evidence relating to how the document was executed, and any evidence of the person’s testamentary intentions, including evidence of statements made by the person.
In Hatsatouris v Hatsatouris, three conditions were outlined for the execution of a Will to be dispensed with, these were later adopted by the Queensland Court of Appeal in Lindsay v McGrath, and include:
- Was there a document?;
- Did that document purport to embody the testamentary intentions of the relevant deceased?; and
- Did the evidence satisfy the court that, either, at the time of the document being brought into being, or, at some later time, the Deceased, by some act or words, demonstrated that it was her or his intention that the document should, without more operate as a Will?
Boddice J in Lindsay v McGrath stated that with the above requirements in mind, and to satisfy the onus:
The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.
Documents which contain only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions…will not suffice for the purposes of s 18 as the evidence Will not establish the document in question embodied the settled intentions of the deceased.
The court must be satisfied that the deceased had testamentary capacity at the time of creating the document, which the respondents bore the onus of proving. In Konui v Tasi & Anor it was said:
A presumption of testamentary capacity does not exist in the absence of a formally executed Will. The onus of proving testamentary capacity where there is an informal Will lies on the party seeking to convince the court the deceased intended the informal document to constitute his or her Will.
Reasoning of Justice Brown--The question before the court was whether section 18 of the Succession Act had been satisfied?
Was the text message a document for the purposes of the act?
Justice Brown began his analysis as to whether the text message could constitute a Will. His Honour cited the decision in Re Yu, which held that documents created on an iPhone constituted a document for the purposes of section 5 of the Succession Act. Section 5 of the Succession Act refers to section 36 of the Acts Interpretation Act 1954 (QLD), which defines a document as:
Any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being produced or reproduced.
Consequently, His Honour was satisfied that the text message was an electronic document and satisfied the definition of a document.
Did the document purport to state the testamentary intention of the deceased?
His Honour cited Re Masters (deceased) where it was said, “the document must state the deceased’s ‘testamentary intentions’, that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death.” His Honour cited a number of matters, which suggested the text message, did convey the deceased’s testamentary intentions. These included, the words “my Will” and “keep all that I have” which was preceded by identification of the house and superannuation being the principal assets of the deceased. The fact that the deceased wrote “Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten”, and that the deceased identified his cash in the bank, provided his bank pin number, and where he wanted his ashes placed, all added to the testamentary nature of the text message.
BY LUKE MCLAUGHLIN
Luke is currently studying for a Bachelor of Business Communication degree, majoring in Public Relations & Bachelor of Law (LLB) specializing in Corporate and Commercial Law.
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