An UNSENT text message found on a dead man’s mobile phone has been accepted as his final will by a Queensland Supreme Court judge in a decision believed to have set a new precedent in Australia.
It means his brother and nephew will inherit his estate, instead of his wife and son.
The mobile phone was found with the dead man, after he took his own life, by his widow on October 10, last year.
On October 11, a friend of the wife accessed the mobile phone to look for contacts and found the unspent text message, addressed to the man’s brother.
It said: “Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden … 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 … 10/10/2016 My will”
The wife applied to the Supreme Court for a grant of administration on intestacy, while his brother and nephew applied for the unsent text to be treated as his will.
The wife relied on the fact that her husband had not sent the text message, which she said was consistent with him not having made up his mind.
She said he had a history of depression, he had previously attempted suicide and had not made a formal will.
There was no evidence of any other will.
The brother and nephew said the document on the mobile phone was described as “my will’’ and the message included directions as to where the man’s wallet was located and his bank PIN number.
They said it was likely the man intended that the text message, saved as a draft, be found after he killed himself.
Justice Susan Brown said there was no evidence of any other will. A forensic examination revealed the text message was created on October 10 last year.
The man’s modest assets included a house at Brassall, two superannuation accounts, household effects and possible membership of a class action.
If the intestacy rules applied, his estate would have been divided between the wife and the man’s son. Father and son had not maintained consistent contact, the court heard.
While the text message indicated the wife had left the man to return to her first husband, the father of her two sons, but the wife said she was only friends with the father of her two sons.
Justice Brown said the evidence did not show they had a relationship, but added: “That is not to say the deceased was not jealous about (her) relationship with her ex-husband’’
The judge said the informal nature of the text did not exclude it from being sufficient to represent the deceased’s testamentary intentions.
“I consider that the terms of the text message were intended by the deceased to represent how he wished his property to be distributed upon his death,’’ Justice Brown said.
A forensic examination revealed the text message was created on before the man’s death.
Justice Brown said despite the fact that the manl committed suicide, there was evidence showing he was able to function and think normally prior to his death.
She found he had testamentary capacity when he created the text message and was satisfied that he intended the text message to operate as his final will, at the time he completed it.
Justice Brown said he had created it on or about the time he was contemplating death and indicated where he wanted his ashes to be placed.
The mobile phone was found with him and in the message he addressed how he wished to dispose of his assets and that he did not want to leave his wife anything.
There was also a level of detail, the message included the man’s initials and date of birth in the message and he ended it with “my will’’.
“The terms of the text message reflect that the deceased wished the document to be his final will and was not merely an emotional expression of wishes,’’ Justice Brown said.
She found that the mobile phone being found with him, at the place he took his life, was consistent with him not wanting to alert his brother that he was about to commit suicide.
He considered his relationship with his wife was at an end and there was evidence he and his son had not maintained contact, while he had close relationships with his brother and nephew.
Justice Brown ordered that the will be admitted to probate, in favour of the brother and nephew of the deceased.
Brisbane barrister Richard Williams, a succession law expert who represented the man’s widow, said he was unaware of any other case where an unsent text was accepted as a valid will.
“It just shows the court is accepting new scenarios,’’ Mr Williams said.
“A document that is not signed or witnessed can still be accepted as a valid will.’’
Kay Dibben, The Courier-Mail