Re Nichol – What constitutes a will?

Your last will and testament is a very important document. It is your opportunity to determine what will happen to your estate property when you die. This property may include sentimental items such as specific pieces of jewellery as well as financial resources. One would assume that there would need to be at least some level of formality in creating such an important document. According to a recent decision of the Supreme Court of Queensland, however, this is may not be the case.

In Re Nichol the Court found that an unsent text message was sufficient to act as a will. Without a will, it was likely the deceased’s property would have been left to his wife and son. The unsent message, which was signed off with a smiley face emoji, purported to leave all of his property to his brother and specifically excluded his wife (because the testator believed she had returned to her ex-husband). There was evidence that the message was written shortly before the man committed suicide.

The succession law in Queensland and New South Wales are comparable in regard to requirements for informal wills. Section 8(2) of the Succession Act 2006(NSW) provides, in part, that:

  1. The document [that purports to state the testamentary intentions of a deceased person] forms:
    1. The deceased person’s will – if the Court is satisfied that the person intended it to form his or her will

The corresponding Queensland section (Succession Act 1981 (Qld) s 18(2)) is almost identical. Re Nichol was argued on the basis of whether an unsent text message could constitute intention for the purposes of forming the man’s will. A number of submissions were made by both the applicant and respondent. It was submitted by the applicant (the wife) that the fact the text message was not sent constituted evidence that the intention for the message to form the man’s will was not present and he had not fully committed to it forming his will.

The Judge ultimately found that the respondent’s submission, that the intention was evidenced by the fact the deceased man wrote the message immediately prior to committing suicide, and the detail contained in the message was similar to that of a will (including burial instructions), was a more favourable submission.

This case highlights the extent to which the Succession Act can bring in documents that on their face appear to not meet the formal requirements of a will. These provisions, however, only act as a back-up to the formal requirements of wills that includes executing and witnessing. The decision in Re Nichol should not serve as authorisation to not comply with the execution and witnessing requirements. Where there is less evidence of intention, for example if the message was written six months before a suicide, the intention that it was the deceased’s last will may not have been upheld.

Case Citation:
Re Nichol; Nichol v Nichol [2017] QSC 220


The information posted on this blog represents our opinion and should not be taken as legal advice.