[FEB 2018] Case Comment: Re Nichol

I know that this is an Australian case, but it is an interesting one which may even shape the future of wills. So I have decided to write about it.


Re Nichol; Nichol v Nichol [2017] QSC 220.


The facts of the case are actually quite upsetting. A 54 year old man, Mark Nichol committed suicide at his home. His wife Julie, found his phone besides the body, and later decided to ask her friend to go through Mr Nichol’s contacts and notify his friends of the death. Julies friend found an unsent text addressed to Mr Nichol’s brother David Nichol.


The text read…


“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 bank Cash card pin 3636


MRN190162Q

10/10/2016
My will”


After a series of evidence heard in the Queensland court as an attempt to understand the deceased wishes, and much to Julie’s despair, the unsent text was regarded as a valid will

The Law

Much like the English Law, Section 10 of the Succession Act 1981 requires a will to be in writing and to be signed by the testator in front of two or more witnesses. Sounds simple so far. Section 18 of the act however gives a Judge the power to overlook any failure of meeting the requirements of a valid will, provided that there is evidence of intention.
In this case, a troubled marriage and unhappy relations were enough to suggest why Mr Nichols decided to create such will.

Comment

Many people, including myself had an image of a will being created on parchment paper with an ink fountain pen. This conventional concept of the creation of wills is fine, so long as it is convenient. The modern age of technology has created a platform for wills to be created in an informal manner. As this case has demonstrated, a text may be sufficient, and perhaps even an email.
In practice, it is understood that the writing of a will can be in any form such as being handwritten, or type-written. There is also little restriction in terms of the material used for the will to be written on. So the presumption that a valid will would need to be formally executed is not entirely true.
This issue has been addressed by the Law Commission on 2017, urging the modernisation of the laws of will. Of course, the changes will identify the use of digital technology. The review has also proposed a similar provision to Section 18 of the Succession Act in Australia. This provision will allow the Court to overlook harsh legal requirements in certain cases to reach the right outcome.
A modern update should not remove formal requirements entirely as the law will risk clarity and validity. The reason why the current Wills Act 1837 encompasses formal requirements such as two witnesses, is so that the law is able to avoid contestation of a will. The courts do not wish to assume the position of the diseased and infer intention.
It is definitely interesting how the Queensland Court inferred intention through the unsent text. This decision was possible as a result of Section 18 and through a detailed analysis of the evidence. So it will be interesting to see whether the proposal will be implemented into English Law. There is a chance that the provision will see an increase in the number of contested wills, or even ambiguous wills. Maybe I have already created a will on social media,

my family will find out one day.

 

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