What Queensland’s unsent SMS case teaches about wills

The new Supreme Court case in Australia may change the way we look at wills in the UK, writes Hannah Mantle

Anyone who saw the recent Supreme Court case in Queensland might have been surprised to find out that an unsent text message was approved as the final will of a deceased. In Re Nichol, the deceased separated from his wife in 2016, a few days later he prepared a text message regarding his estate, before committing suicide. A claim was brought by his wife, who would benefit if there was no will; and defended by his brother and nephew, who benefited from the text message. While the judgment shows that the law in Queensland has dispensing provisions, meaning that the formal requirements of a will can sometimes be overlooked, no such exceptions apply to a will made in England & Wales. What would have happened if the text message had been written here?

The usual law regarding will validity in England & Wales is similar to the law set out in Re Nichol – i.e. that a will must be in writing, signed by the testator (who must intend the document to be a will) and the signature must be witnessed and signed by two witnesses.

While there are exceptions to these formalities, for example, for certain soldiers and mariners, these apply to very narrow portions of the population and seemingly would not have applied in this case.

What seems to distinguish the law in Queensland (and many other common law jurisdictions) from England & Wales, is the lack of provisions dispensing with the usual formalities for a will. While a will can be rectified (if it contains an administrative error, or a failure to understand instructions), a will prepared on a phone, and not signed or witnessed, goes far beyond what we could consider an administrative error. This means that the will could not take effect, as it simply does not comply with the necessary formalities. A claim like Re Nichol in this country wouldn’t get off the ground.

One of the only saving provisions in this country is a donation mortis causa (DMC) or deathbed gift. A DMC is a type of gift (not will), and must be made in contemplation of death, conditional on death, and control of the asset must to pass to the intended recipient. Sadly, the text message was not even sent to the recipients, let alone were the assets themselves delivered to them, so the third criteria was not satisfied. Anyway, the Courts have been slow to allow DMCs in recent years, because of the lack of formalities and the risks which arise from that.

The main points of dispute in Re Nichol related to the question of intention and mental capacity to make a will. Obviously it is more difficult to assess capacity and intention when no one else has been involved in preparing, or witnessing a will. In this country, intention is usually quite clear, as the testator has prepared a will, which is signed and witnessed in accordance with the formalities. However, capacity is a question which regularly arises in English Will disputes. Interestingly, the same test of capacity which applies in this country is applied in the judgment. While the Queensland Court took the view that Mr Nichol had capacity to make his will, I wonder whether the English Court would have found the same in the circumstances.

Perhaps in future, there will be further exceptions in this country. The Law Society here is currently consulting on reform to the law on making a will. They are considering both electronic wills; and dispensing provisions such as those which took effect in Re Nichol, but perhaps concerns about protecting a testator from unscrupulous beneficiaries will prevent any significant departure from the current law. In the meantime, a testator should take advice and prepare a suitable will if they want to avoid a long and expensive claim after their death.