A court in Australia accepted an unsent, draft text message on a mobile phone as an official Last Will and Testament. Nichol v. Nichol

The decedent, Mark Nichol, a 55 year old man, committed suicide in 2016. The decedent’s mobile phone was found on a work bench in the shed where the deceased’s body was found by David Nichol, the deceased’s brother, and his nephew, Jack Nichol, . The following day, the mobile phone was accessed and the following unsent text message was found in an electronic file marked “drafts”:

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



My will

The abbreviation “MRN190162Q” matched the deceased’s initials and date of birth, 19 January 1962. The text message was addressed to the deceased’s brother David whose contact details were stored in the deceased’s mobile phone under the abbreviated name “Dave Nic”. The “Julie” mentioned in the text referred to decedent’s spouse, Julie Nichol.

Thereafter, an application for letters of administration based on intestacy was brought by the deceased’s widow Julie. At the same time, David and Jack Nichol brought an application seeking a judgment admitting the unsent text message on the decedent’s mobile phone to probate as his Last Will and Testament.

The decedent’s spouse argued that the fact the text message was not sent indicated that the decedent had not made up his mind about the disposition of his estate. However, the court said the man clearly knew what he was doing by ending the text with the words “my will”. The court also deemed likely that the decedent intended that the message to be found with him.

The court held that the “informal nature” of the message did not prevent it from representing the man’s intentions, especially since it 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”. Also according to the court: “The reference to his house and superannuation and his specification that [his spouse] was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small.”

In conclusion, the court held as follow: “In all of the circumstances I consider that the text message was intended by the deceased to operate as his will upon his death.”

The case is annexed here – Nichol v. Nichol

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