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Unsent Text - But Message Received Loud and Clear

By Renee Bennett

16th October 2017

There has been much media attention given to the Supreme Court of Queensland decision [1] regarding an unsent text message being held to be a valid will.

The deceased had tragically taken his own life late last year. He was survived by a number of family members including his widow, a son from a previous relationship, his brother and his mother.

His widow (with whom the son agreed) sought an application for letters of administration on intestacy. The brother and mother sought an application that an unsent text message on the deceased’s phone was a valid will under the relevant legislation and that the normal execution requirements for a will be dispensed with.

The case isn’t unusual in the sense that a suicide note has been found to be a will, that is not uncommon in this area of the law. The Court in Queensland can dispense with the formal execution requirements for a will provided the applicant can establish there is a document, that the document purports to embody the testator’s intention and that the deceased intended the document to operate as their will.

What was usual was that the “document” was a text message found on the deceased’s phone that had not been sent by him. The court said that while the text message wasn’t sent, but was saved as a draft, the fact the phone was found with him at the place he took his life is consistent with the fact that he did not want to alert his brother to the fact he was about to commit suicide, but he did intend the text message to be discovered when he was found.

The outcome being the text message was held to be a valid will and the deceased’s brother and mother were appointed administrators.

[1] Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

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