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Informal Wills and Undue Influence

PUBLISHED FEBRUARY 2018

Unsent text message is an informal will

Mark Nichol made and saved a text message on his mobile phone shortly before taking his own life. A friend, searching the contacts list to determine those to be informed of the death, found the text and took a screen shot. The Court in Re Nichol; Nichol v Nichol [2017] QSC 220 decided that the text message was a document. Its contents – the message refers

to ‘my will’, identified property with instructions to keep, and identified the placement of ashes – satisfied the requirement that it purported to state testamentary intentions. The circumstances – the message was made at a time when Nichol was contemplating death, the phone being found with the body, the contents and detail in the message and the absence of contrary wishes – satisfied the court of the further requirement that the deceased intended the unsent message to operate as his will.

Undue Influence

In Hartley v Woods [2017] NSWSC 1420, the plaintiff successfully brought proceedings against Woods for equitable compensation to the deceased’s estate. The Court considered that gifts of the deceased’s property to Woods of $50,000, $10,000 and $500,000 were too large to be justified as a routine incident of ordinary life. Whilst the deceased was under Woods’ care, Woods held a position of ascendency over her and she was dependent on him and trusted him. There was a presumption of undue influence which was not rebutted. Applying the rule in Cherry v Boultbee, Woods was deprived of participation in the deceased’s residuary estate unless and until he restored property to the estate. Woods was also found to be an unsuitable person to obtain a grant to administer the estate. His deception of the deceased’s bank in withdrawal of funds from her account after her death was said to be a primary disqualifying factor. His liability to account for money to the estate pursuant to the judgment, and the possibility that the estate might be required to make a claim against one or both of his daughters were other factors.

The advice in this article is general in nature and you should consult your solicitor for specific advice