Can an unsent text message be a will? That is, can a draft message that is on your phone, but not sent to the intended recipient, amount to a will? This was the very issue in a recent case in Australia: Nichol v Nichol  QSC 220 heard by Supreme Court of Queensland.
Can an unsent text message be a will in Australia?
This case comes out of a rather tragic story. The deceased, Mark Nichol, was married three times. He became estranged from his first wife and son. His second wife passed away. He was married to his third wife for three years before he passed away. His third marriage also saw difficult times with the couple splitting up on a number of occasions. He attempted suicide but then looked for professional help. His third wife left him again. This time she moved in with her ex-husband.
Two days later he took his own life. Just before doing so, he wrote a text message to his brother without sending it. After a search, no will could be located.
The deceased’s testamentary intentions were not clear, so proceedings commenced. The deceased’s wife (Julie) brought an application claiming that the deceased had died intestate (without a will). The deceased’s brother (David) and nephew (Jack) brought an application asking that the unsent text message should be treated as his will.
This is the text message in question:
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish 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 back Cash card pin 3636
“MRN” were his initials and the numbers were his date of birth. Experts confirmed that the message was not sent, but was created before the deceased’s death.
The Court was faced with a question: can an unsent text message be a will? If the deceased died intestate, as his wife claimed, then his estate would be divided between his wife and his son. But in order for the message to be considered an informal will under Australian law, the Court would have to be satisfied that,
- the document expresses the testamentary intentions of the deceased;
- the deceased intended that the document act as his will; and
- he had capacity at the time the document was prepared.
The Court found that the first requirement was clearly satisfied because the text contained the phrase, “my will”. It dealt with the deceased’s assets and explained why he did not want his wife to inherit. It also gave instructions regarding his ashes.
Regarding the second requirement, the wife argued that it was highly relevant that the text was not sent. The Court, however, found that the requirement had been met. It found that the reason for not sending the message was because the deceased did not want to alert his brother to the fact that he was committing suicide. This would inevitably result in his brother rushing to try and stop him.
On the final requirement, the Court noted that suicide does not lead to a presumption against capacity. The evidence given showed the deceased was seeking out help. This led the Court to hold that the deceased was acting and thinking rationally up to the day he committed suicide. His message indicated he was able to think rationally about his assets and the people he wanted to benefit with these assets.
All of the requirements were satisfied. The Court found that the unsent text message must be treated as the deceased’s final will.
Can an unsent text message be a will in South Africa?
The above story comes out of Australia. How would South African law treat this case? Can we consider an unsent text message to be a will in South Africa? The Wills Act, Electronic Communication Transaction Act and case law are all relevant in answering this question. We will consider this in the next blog post.
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