Unsent text message Will: It got probate, but will they get the super?

19 October 2017
4 min.
Worthwhile read for: Wills and estate planners

Last week, the Queensland Supreme Court recognised a man’s unsent, draft text message to be an official will. The draft text message stated the man’s intention for his assets to be left to his brother and nephew rather than his wife and son. In the decision of Re Nichol, the court recognised the draft text as a valid will, granting probate to the nominated executors.

Whilst this is not the first time the Court has granted probate of a will typed on a smart phone, a smart phone should not be considered a cheaper way to make a binding will. Typing a message on a phone can be, and is, an extremely risky way to make a will.

In Queensland, to be valid and enforceable, a will must be:

  • in writing; and
  • signed by the will-maker in front of two witnesses, both of whom must be over 18 years old, and who are not beneficiaries to the will.

Where a will does not comply with these requirements, the court can dispense with the formalities and declare an informal document valid. The court can make this declaration if a document which purports to state the testamentary intentions of the deceased exists and the court is satisfied that the deceased intended the document to be, or form part of, their will. The phrase ‘Documents’ is not restricted to paper, but is defined broadly to include most forms of written or recorded communication.

Generally, the court is extremely cautious to accept an informal document as a valid will, however, the facts in Re Nichol were unique, constituting a different outcome. The unsent text message was held to be a valid will because the court was satisfied that:

  • the text message was intended to represent the author’s intentions and it was composed in contemplation of his death;
  • the text message dealt with the author’s property so comprehensively that it was designed to be a will;
  • the text message was composed in a way that indicated the author appreciated those who had a claim upon his estate, and determined to discriminate between them;
  • the author’s interactions with his brother, nephew, son and wife prior to his death did not indicate any wishes or intentions contrary to those set out in the text message;
  • the text message was composed in circumstances where it was unlikely to have been written or altered by anyone else; and
  • the author had testamentary capacity at the time of creating the text message.

The circumstances surrounding the creation of a document are crucial in determining whether an informal document will be recognised as a will. The danger in relying on decisions like Re Nichol is that it is very difficult to reproduce the circumstances that would lead the court to declare a text message as a valid will.

In a 2011 decision of the Queensland Supreme Court, an electronic document saved on the deceased’s computer was not deemed a valid will because the court was not satisfied the deceased intended the electronic document to be her will. Similarly, in  2013 the court found that an off the shelf will-kit incorrectly completed by a deceased couple were not valid wills.

Re Nichol is certainly not a quick fix for a cost effective estate plan. It is for the court to determine on a case-by-case basis whether an informal will is valid. This is a costly, uncertain and drawn-out exercise.

Getting probate is only half the battle

Even after spending the time and money involved in obtaining a grant of probate of the unsent text message, there is no guarantee that the beneficiaries will receive the superannuation. This case highlights a commonly held misconception. In Re Nichol, the deceased purported to leave his house, cash and superannuation to his nephew and brother. However, superannuation benefits will not automatically form part of your estate on death, and cannot be primarily dealt with in a will.

For that reason, it is critical to understand how superannuation death benefits are paid so that an appropriate estate planning strategy can be developed. Ultimately, having a clear, valid and binding will that forms part of a considered estate planning strategy is the only way to ensure your assets will be distributed according to your wishes.

For more information or professional advice on preparing and executing wills, please contact our Estate Planning and Administration experts.

19 October 2017
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