An unsent text message found on a deceased man’s phone has been declared by the Queensland Supreme Court to be his valid Will. The text message was addressed to the man’s brother, and contained details about how he wanted his assets to be dealt with on his death.

The man (who took his own life) was survived by a wife (with whom he had a volatile relationship – they had, in fact, separated in the days prior to his death) and an adult son from a previous relationship (with whom he did not maintain regular contact). The man’s wife argued that he died ‘without a Will’. His brother and nephew applied to have the unsent text message treated as his valid last Will.

The man’s wife argued that he did not intend for the text message to operate as his Will because the text message was not sent – indicating that he had not yet made up his mind. The Court, however, determined that there was a sufficiently compelling reason for not sending the text message – in that the man did not want to alert his brother that he intended to take his own life.

The Court concluded that:
  • despite the fact that the man had taken his own life, there was evidence showing he was able to function and think normally prior to his death;
  • the man had “testamentary capacity” (i.e. legal and mental ability to make a Will) when he created the text message and intended the text message to operate as his final Will – rather than it being merely an emotional expression of wishes;
  • the man considered his relationship with his wife to be at an end;
  • there was evidence that the man and his son had not maintained contact; and
  • the was also evidence that the man had close relationships with his brother and nephew.
The Court ordered that the unsent text message be accepted as the man’s valid Will (even though the usual formalities of a Will, such as signing the document in front of witnesses, had not been complied with). The upshot? The man’s brother and nephew will share his estate rather than his wife and son, who would have benefitted from his estate if it had been found that there was no Will in existence.

What now for the man’s wife and son?

They have rights to make a Family Provision Application under the Succession Act 1981 (Qld), on the basis that their husband/father did not make adequate provision for them from his estate. Whether they take those steps remains to be seen. The small size of the estate and the costs already incurred in pursuing an expensive Court action to deal with the issue of whether the unsent text message constituted a Will are likely to have a bearing on whether a Family Provision Application is made. The costs of both parties in the initial Court action were ordered to be paid from the estate proceeds.
The decision highlights the fact that the Court is accepting new scenarios - the digital age is well and truly here! It also highlights the importance of formally documenting your estate planning wishes – to avoid (or at least minimise the likelihood of) the unnecessary stress, substantial costs and time delays associated with Court actions to determine a deceased person’s wishes or to deal with a Family Provision Application.
Angela Hurley is an Associate in the Commercial Team at McKays. Please contact our highly skilled Team to assist you with your estate planning needs.