by Emma Clarke
A FORENSIC examiner has been called to settle a dispute between a 65-year-old's family and his widow after he wrote his will in a text message but never sent it.
'Keep all that I have and put my ashes in the back yard' were among the specific and graphic instructions a Brassall man wrote in a text message to his brother before he committed suicide.
The unsent text message was found on the phone alongside Mark Nichol's body on a shed workbench last October.
It said for this brother and nephew to have his estate and his wife was to "take her stuff only".
Julie Ellen Nichol applied to the Supreme Court of Queensland this month that the contents of the text message did not constitute a will.
A Supreme Court Justice ruled the text message was Mr Nichol's final will and his widow was not entitled to his estate.
"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, 10/10/2016 My will," the message read.
The man's widow argued he did not have capacity at the time he created the text message and that he did not intend for the text message to operate as part of his will.
She argued he had not made up his mind because he had not sent the text message.
The court heard the deceased and his widow had been married for a year before he committed suicide and 'it was a controversial relationship that had problems'.
She had left him at least three times during their relationship, the latest two days before he died.
The man's family argued the text message was 'described as my will' and they suggested the text message was not sent before the man died because he did not want to be stopped.
The court heard the man did not have a written will and despite him telling his mother a year before he died he "had written something out and put it behind the china cabinet", it was never found.
Forensic examination confirmed the text message had not been sent and it had been created before he died.
Justice Sue Brown said the court had been provided with 'a lot' of affidavit material.
"Some of that material is unnecessarily inflammatory and unhelpful. There is obvious antagonism between the applicant and the respondents," she said.
Justice Brown said she considered the deceased intended the text message to operate as his will upon his death.
"The terms of the text message reflect that the deceased wished the document to be his final will and was not merely an emotional expression of wishes.
"I find that having the mobile phone with him at the place he took his life so it was found with him and not sending the message, is consistent with the fact that he did not want to alert his brother to the fact that he was about to commit suicide, but did intend the text message to be discovered when he was found."
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Formal requirements for making a will
The key requirements for a valid will are:
- the will must be in writing;
- the will must be signed by the testator at the end of the will;
- the testator's signature must be witnessed by two witnesses. (A beneficiary or their spouse cannot witness a will. If they do they will lose their entitlements under that will);
- the witnesses must sign the will in the presence of the testator and each other (Source: Legal Aid).