Properly drafted Wills are usually, within the exceptions of the law, taken to be the definitive intention as to the estate of an individual.

An improperly drafted will was traditionally seen as a valuable opportunity to contest the document and claim a portion of the deceased’s estate. The pitfalls of ‘budget wills’, and those not executed properly have been well documented in a number of cases. Seemingly unassuming flaws such as the testament being improperly witnessed, or not signed at all have all been grounds to invalidate a will.

Recent developments in the law have changed this perspective, and it appears that the courts have shifted their position to consider the substance of wills, rather than the specifics of their form. The recent case of Re Nichol; Nichol v Nichol & Anor [2017] QSC 220 is a perfect example of the Queensland Supreme Court supporting this view.

Material Facts

Mr. Nichol was married to Mrs. Nichol for a period of 1 year and was in a relationship with her for 3 years. Mrs. Nichol brought a son to the relationship. Their marriage was rocky from the start, but there was evidence to suggest that Mrs. Nichol provided emotional support to Mr. Nichol for the duration of their relationship. He tragically took his life in 2016. Before he did so, however, he had an unsent SMS message in the outbox of his mobile phone that intended to convey his last testament by excluding his wife and son from his estate and instead leaving his assets to his brother and nephew. The court was presented with two competing applications, one being an application for intestacy, on behalf of Mrs. Nichol who was to be the sole beneficiary of the estate, and the other was an unsent text message on the mobile phone of the deceased.

Supreme Court Findings

In order for the Queensland Supreme Court to dispense with the formal execution requirements of wills, there had to be the satisfaction of a few key elements that illustrated the testamentary  intention of the deceased. The court upheld this by virtue of the words used by the deceased in their message, which ended with the terms “My Will :)”. Therefore, in substance rather than form, the Court was able to ascertain the testamentary intention of Mr. Nichol, given his particular choice of words. However, the court was also required to consider the mental state of the individual, a fact that was particularly important given that the deceased chose to take his own life. The court found that a ‘disorder of the mind’ does not absolutely ‘poison the mind’ of an individual such that they cannot make important and binding decisions in their life; rather it is the extent or the degree of the disorder that is the key determining factor. In the case of Mr. Nichols, the court noted that he mentioned in his message that his wife should retain the assets that belonged to her, with all real and personal property in his name going to his brother and nephew. The court considered these elements along with the premeditated nature of the contents of the will and ruled that the fact that the deceased had committed suicide did not diminish their testamentary capacity. The text message was held to be a valid last will and testament of the deceased, and the deceased’s brother was appointed as administrator of the will.

Outcome

Though the ruling was found made in Queensland, it nonetheless sets a precedent for unconventional wills to be allowed by the courts. The technological advancements in the 21st century have posed unique challenges to the law and the way people communicate. The Nichol case is an important example of how although technology changes around us, the important considerations are the intentions of the parties and less priority is given the form of how our intentions are presented.

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