An unsent text message found on the deceased’s mobile phone has admitted to probate bythe Supreme Court of Queensland.
In Re Nichol; Nichol v. Nichol  QSC 220 (9 October 2017), the deceased created a text message on his phone. It was addressed to his brother and nephew, but was not sent. The deceased then committed suicide. The phone was found by the deceased’s brother in the shed where the deceased’s body was found.
The text message read as follows:
“Dave Nic [the deceased’s brother] you and Jack [the deceased’s nephew] keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie [the deceased’s estranged wife] 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 3636
MRN190162Q [the deceased’s initials and date of birth]
At the end of the text message was a paperclip and a smiley face emoji.
The court reviewed the relevant Queensland statute, which allows a court to accept an unsigned document to probate. The legislation requires that the court be satisfied that the deceased intended the document to form the person’s will. In considering whether to do so, the court will need to be satisfied that the deceased’s intention was that the document should, without more, operate as his or her will.
The court noted that “great care” is to be taken in evaluating the evidence. More is required than simply showing that the document sets out testamentary intentions. The evidence must show that the deceased wanted the document to be his or her final will, and did not want to make any changes.
With respect to being a “document”, the court relied on the definition of “document” in the Acts Interpretation Act, which includes electronic documents. The court also referred to the case of Re Yu, where documents created on an iPhone were found to constitute a valid will.
The court reviewed extensive evidence about the deceased and his relationships with the parties, as well as evidence as to his capacity.
With respect to the argument that the text was not sent and therefore, the deceased did not want it to be operative as his last will, the court found that the deceased did not send the text because he did not want to alert his brother to his suicide, but wanted the text message to be discovered when he was found.
In Ontario, such an outcome would not be possible. The Succession Law Reform Act requires that, with respect to a typewritten will, it must be executed by the testator (or some other person in his or her presence and by his or her direction) in the presence of or acknowledged in the presence of two or more witnesses, and signed by two or more witnesses in the presence of the testator. With respect to a holograph will, no witnesses are required, but the will must be wholly by the testator’s own handwriting and signature. There is no “saving provision”, such as that found in the Queensland legislation, or “substantial compliance” provisions.
Interestingly, the Queensland court did not comment on the significance or lack of significance of the smiley face emoji. Neither the Queensland legislation nor the Ontario legislation legitimizes wills signed with a J.
Have a great weekend.