Guest post by Barbara Rich

On 11 October 2017, this headline appeared on the BBC news website.  The story naturally aroused a lot of interest and discussion.  The traditional need for formality (two witnesses present at the same time to witness the signature of the person making the will) in creating a valid will is one of those fragments of the law which is quite widely known to the public.

The BBC news story, which appeared in the “Technology” section of its website rather than as a story about the law, does not link to the text of the judgment of the Supreme Court of Queensland, published on 9 October 2017, but this is publicly available on both the BarNet Jade and AUSTLII websites, cited as Re Nichol; Nichol v Nichol [2017] QSC 220.

In its original version the BBC news story also made no reference to the fact that the court in Queensland – the Australian state where the case was decided – was applying a law which allowed it to dispense with formality in making a valid will, or that there is a live possibility of a similar law coming into force in England and Wales.  This is one of the most important aspects of the story for an English reader, as it gives the focus of a recent decision as a context for considering the Law Commission’s proposal to introduce a similar law in England and Wales.

The history of the unsent text

As so often, the story behind the case is a very sad one.   Mark Nichol, a man of 54 who lived in a suburb of Brisbane, killed himself in a shed at his home in October 2016, having apparently made a previous suicide attempt in June 2016.  On 10 October 2016, his wife Julie found his mobile phone alongside his body, on a workbench in the shed.  The following day, 11 October, Julie asked a friend of hers, Alicia McDonald, to access the mobile phone to look through the contact list to see who should be notified of Mark’s death.  Alicia told Julie she had found an unsent text message, and one of Mark’s nephews took a screenshot of it.  It 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”

The judgment records that the abbreviation MRN190162Q matched Mark Nichol’s initials and date of birth, 19 January 1962.  The Q isn’t explained, but perhaps stands for Queensland, the state in which he lived.  There was a paperclip symbol (indicating an attached image) on the left of the words “my will” and a smiley face of the other side.

There was no dispute that the text message was addressed to David Nichol, who was Mark’s brother, and whose contact details were stored in the phone’s memory under the name “Dave Nic”.   Mark Nichol’s former wife Patricia (presumably the “Trish” referred to in the text), was dead.  Mark had remarried, having been in a relationship with his wife Julie for about three and a half years, and married for a year.  Mark also had an adult son, Anthony, who is not mentioned in the text.  The judge said that it was

“uncontroversial that the relationship [with Julie] had problems and that [Julie] had left the deceased on at least three occasions, the final time being some two days prior to his death. It should be said, notwithstanding that [Julie] had moved out, she still made arrangements to take the deceased to his mental health appointments and that they spent the weekend prior to his death together.”

Mark had never made a will before, although he had talked both to Julie and to his mother on different occasions about having made one.  David also gave evidence about conversations he had had with Mark, in which Mark had said that he wanted all his possessions, including his house and his superannuation fund, to go to David.

The phone was forensically examined and the examiner confirmed that the message had not been sent, and that it was likely to have been saved unsent by someone pressing the back arrow on the message editing screen.  The date of its creation could not be pinpointed beyond confirming that it was created at some time prior to the point when Alicia had accessed it on 11 October 2016.

Julie did not think that the text message should be regarded as a valid will, and applied to court for letters of administration on intestacy, under which she and Mark’s son Anthony would have been entitled to Mark’s estate.  She was supported by Anthony.  David Nichol, and his son Jack contested this application, and instead asked the court to make a declaration under Queensland law that the text message was a will, even though it had not been executed as a will in accordance with the usual legal formalities.   They were supported by Mark’s mother, and by another brother, Bradley Nichol.

Julie argued that the fact that the text was unsent showed that Mark had not made up his mind that it was to be his will.   David and Jack’s response to that was that

“the fact the text message was not sent does not indicate that the text message was not intended to have effect. [David and Jack argue] that the likely intent of the deceased was that the text message be found after he had killed himself. If he had sent that message before he took his life then David Nichol or Jack Nichol would have invariably attempted to take steps to try to stop the deceased.”

In a report of the case in the Daily Mail, Mark’s son Anthony is quoted as saying:

“If you knew my father, that wasn’t his last will and testament – that was him being sarcastic

They were not his wishes, they were more sarcasm.”

But the judgment records that Anthony did not give evidence, and that other witnesses gave evidence of a difficult relationship and limited contact between Mark and Anthony.  The judge also commented that there was “obvious antagonism” between Julie on the one hand and David and Jack on the other, and that a lot of the written evidence was “unnecessarily inflammatory and unhelpful”.  None of the witnesses were cross-examined on their evidence.

The Queensland law on dispensing with formalities

Section 10 of the Succession Act 1981 in Queensland sets out how a will must be executed.  It says

“(2)     A will must be—

(a) in writing; and

(b) signed by—

(i) the testator; or

(ii) someone else, in the presence of and at the direction of the testator.

(3)    The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4)    At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.

(5)    However, none of the witnesses need to know that the document attested and signed is a will.

(6)    The signatures need not be at the foot of the will.

(7)    The signature of the testator must be made with the intention of executing the will.”

These formalities are very similar those which apply in England.  But the law in Queensland contains a power – which English law does not – to dispense with the formal execution requirements of a will.  Section 18 of the Queensland Succession Act 1981 provides as follows:

“18 Court may dispense with execution requirements for will, alteration or revocation

(1)       This section applies to a document, or a part of a document, that—

(a) purports to state the testamentary intentions of a deceased person; and

(b) has not been executed under this part.

(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—

(a) any evidence relating to the way in which the document or part was executed; and

(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).”

The heart of this provision is in the words of s18(2).  It requires a judge to be satisfied that the person “intended the document … to form the person’s will”.  This intention-based approach is a 2006 revision of the law as originally enacted in 1981, and which looked to the question of whether or not there had been substantial compliance with strict formality rules.

An intention-based approach means that the judge must form inferences from all of the evidence including evidence of the type described in s18(3).  Unsurprisingly, in one of the earlier cases quoted by the judge in Nichol, the judge had said “Great care is to be taken in the evaluation of the relevant evidence.”

The judge went on to refer to some other previous decisions in Queensland and set out what she described as the three conditions for s 18 to operate:

  • Was there a document?
  • Did that document purport to embody the testamentary intentions of the relevant deceased person?
  • Did the evidence satisfy the court that either, at the time of the document being brought into being, or, at some later time, the relevant deceased person, by some act or words, demonstrated that it was her, or his, then intention that the document should, without more on her, or his, part operate as her, or his, Will?

Another evidential hurdle for anyone seeking to prove an informal will in Queensland is that the court does not presume that the person who made it had the mental capacity to make a will, so this must be proved by the person putting forward the will as valid.

 The decision of Brown J that the message was a valid will

The judge was satisfied that the text message was an electronic document which satisfied the definition of a document for s18, and that it purported to state Mark’s testamentary intentions i.e. his wishes or intentions in relation to his property on his death.  The text said that it was “my will” and it identified all the significant assets that Mark had, and where he wanted his ashes placed.  Many lawyers who specialise in this field will have seen home-made wills which are less comprehensive and less clear than this.  The judge said that the “informal nature” of the text did not prevent it from being sufficient to represent testamentary intentions, referring to an earlier case where a testator had written “my will” on a DVD in which he had recorded his intentions.  The most difficult issue for the judge to decide was whether Mark intended the unsent text to operate as his will.    She was satisfied that he was able to function and think normally, despite the previous suicide attempt and the fact that he was receiving counselling, and that he had capacity to make a will.  She was also satisfied that Mark “appreciated the significance of what he was doing by creating the text message”, and including the words “my will”.  She identified the circumstances which satisfied her that he did intend the unsent message to be his will:

  • The fact that it was created on or about the time that Mark was contemplating death, and included an indication as to what should be done with his ashes
  • The fact that the phone was with him in the shed when he died
  • The fact that the text dealt with the disposition of Mark’s assets and made it clear he did not wish to leave Julie anything. The judge found this exclusion was explicable, as at the time of Mark’s death she had moved out, and the relationship had been relatively short.  The judge also found that the lack of a constant relationship with Anthony provided a rational explanation as to why he was not referred to in the text message.
  • The level of detail in the message, including the directions about where to find cash and access the bank account, and the words “my will”
  • The fact that Mark had not expressed any contrary wishes or intentions in relation to is estate to those in the message

She said

“The terms of the text message reflect that [Mark] wished the document to be his final will and was not merely an emotional expression of wishes . . .

I do not consider the fact that the message was saved as a draft message and that he did not send it, is evidence that he did not wish the text message to be operative as his will.  Rather, 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.”

 The Law Commission’s consultation in England

As part of a project which commenced in early 2016, on 13 July 2017 the Law Commission published a wide-ranging consultation paper on the law of wills, which is open for responses until 10 November 2017.   As it states (at paragraph 1.2)

“The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.”

One of the “significant changes” which it describes as relevant to its review is “the emergence of and increasing reliance on digital technology”, and one of the areas of will-making which the Law Commission reviews in depth is the requirement of formalities in order to make a valid will.  Formalities can serve a number of functions (see paragraph 5.6 of the consultation):

  • As evidence that the will was made by the person whose name it bears, at a time when s/he is no longer alive to authenticate it
  • To ensure that the person making the will understands the seriousness of what s/he is doing and thinks carefully about what s/he wishes to achieve, and to avoid accidentally creating a legally binding document which does not in fact contain his or her thought-through final wishes
  • To standardise a well-understood means of transferring property on death
  • To protect the person making the will from fraud or undue influence” “the first line of defence against fraud upon the dead” as they were described in one mid-20C case.

If there were no formality rules, there would be a risk that wills which were not the true last wishes of the people who made them would be admitted to probate.  But the existence of formality rules also prevents some genuine expressions of last wishes from being admitted to probate, so there is a difficult question of balance in creating a formality rule, and any exception(s) to it.  The current law in England and Wales requires formalities, but also relies on a presumption of due execution, even for a will which is informal and does not contain a standard clause (an attestation clause) dating the will and stating that it has been signed by the person making it in the presence of two witnesses who have themselves signed as witnesses in the presence of the person making the will.  This means that any challenge to the validity of an English will based on non-compliance with formalities must positively prove non-compliance if it is to succeed.

The Law Commission’s consultation also reviews the “dispensing powers” which operate like s18 of the Queensland Succession Act 1981(in its current form).  These powers exist in all Australian states, New Zealand and a number of states and provinces within the USA, Canada and South Africa.  The Law Commission’s consultation paper discusses intention-based dispensing powers and provisionally proposes introducing such a power in England and Wales.  It asks consultees whether they agree with this proposal:

Should there be a dispensing power in England and Wales?

Most of the instant reaction that I have read to the decision in Nichol has been hostile to the idea that an unsent text message could be regarded as a valid will.  Comments on articles in the Daily Mail are a limited barometer of public opinion, but their general view is summed up in these:

“This is ridiculous, if he’d wanted that then why didn’t he send the text? And as argued, anyone could have written that, whoever found the phone could have, as it wasnt sent with a date stamp prior to his death there’s no way of knowing. Honestly don’t understand why any judge would accept that.”

and

“Antipodes law?? What a stupid verdict from stupid judges. The whole point of written wills and witnesses is to stop claims such as these.”

Lawyers’ reaction to the news story has been very similar – this is representative of other comments I’ve read.

Having carefully read both the judgment in Nichol and the Law Commission’s consultation paper and proposal, and reflected on these comments, I am in favour of an intention-based dispensing law such as that proposed by the Law Commission.  The expression of testamentary intention in a text message reflects a reality of contemporary life for many people – a phone is the instrument of communication and record which is always at hand.  Many of the formalities which would have been standard in business letters a couple of decades ago, let alone the formalities required by section 9 of the Wills Act 1837, seem archaic, in an age where the majority of business correspondence is conducted by email, and monarchs and heads of state express their thoughts on Twitter.  It’s an irony of an age which is impatient with or ignorant of the traditional formalities of wills, that it is also constrained by a different type of formality imposed by information technology: the password rage induced by mistyping half-remembered names of childhood pets into a box on a computer screen, or having an email bounce back because of a single-character error in typing the address.

Although treating an unsent text message as a valid will seems very surprising without knowing the factual context, the full story explains the decision.  I wonder how many other commentators might reconsider their views in the light of reading the full judgment?  In most circumstances, an unsent text message would be seen as tentative rather than conclusive, and unless a phone is securely password-protected (there was no evidence about this in the Nichol case, and I have assumed that it was not password-protected) it is obviously easy for someone else either to type their own message, or, a more obvious risk, to delete something which has previously been typed but not sent.  But in circumstances where the phone is found, as here, in proximity in place and time to a person who has taken his own life, and where suicide also provides an explanation for leaving the message unsent to its ultimate intended recipient, the conclusion of the judge becomes more compelling.   They are unusual circumstances, but not entirely extraordinary. I think that, quite contrary to being a “stupid verdict”, the decision well illustrates how a judicially-exercised power to dispense with formalities where the intention to make a will is proved, could be a valuable addition to the law of wills in England and Wales.  And if such a change in the law was made, a text message reading “All 4 U” might one day qualify as the shortest will ever written.

Will-making at home – traditional …
… and modern?

The above post originally appeared on the blog of the Transparency Project on 15 October 2017, and is gratefully reproduced by permission.

UPDATE 18 OCTOBER – some points raised in discussions in response to the original post 

Costs & futility of litigation

The closing paragraphs of the judgment in Re Nichol deal with the parties’ costs of the litigation, and paragraph 72 sets out the entire order made by the judge.  The costs order she made was one which directed that all the parties: Julie, David and Jack should all have their costs paid on the indemnity basis (i.e. what they actually spent, or something close to it, subject to the rules of costs assessment which apply in Queensland) out of Mark’s estate, with the minor exception of Julie’s costs of one of the procedural hearings.  The judge thought that the application was necessary in order to determine whether the text message was a will, and also said:

“It is clear that the relationship between the parties is unfortunately presently acrimonious and as such the subject of the making of the application is unlikely to have been a matter upon which agreement could have been reached.”

Although the judgment doesn’t contain any figures for either the value of the estate or the combined costs figures, my Twitter follower/ee Jackie Fox @jjfox123 said

“Having lived in that part of Qld for decades, I can tell you that the sale of his house would not have covered the costs”

The expenditure of his entire estate on legal costs must have been the last thing that Mark would have wanted.  It is a particularly unhappy outcome where, as here, it leaves someone – in this case Julie, as the judge recognised – with a valid claim under the Queensland equivalent of our Inheritance (Provision for Family and Dependants) Act 1975, but no estate against which to bring her claim.

This “Bleak House” outcome is an obviously undesirable consequence of changing the law on formalities for executing wills, although it will not be in every case that either the court makes a costs order which burdens an estate with all parties’ costs, and on the more generous basis of assessment, or that the entire estate is lost in paying the costs.  A new law would inevitably lead to disputes that might not otherwise have come to court, but early decided cases would be important illustrations of the operation of the law, which would help to shape people’s expectations in future cases, and negotiate acceptable compromises rather than risk an entire estate in litigation.  All litigation about wills and inheritance carries an element of Bleak House risk, and it’s important for lawyers acting in these cases to keep assessing this risk and giving their clients realistic advice about it, and how to avoid it.  One quite close comparison to this dispute is litigation over the interpretation of a home-made will, and there is a current example of this in a case in England about the will of the late Vljko Aleksic.  He made a will leaving three houses to “the Serbian Orthodox Church”.  This has now been the subject of two High Court judgments, Vucicevic v Aleksic [2017] EWHC 2335 (Ch) on 20 September and [2017] EWHC 2335 (Ch) 10 October 2017, involving as parties the Serbian Orthodox Church (Montenegro branch), the Serbian Orthodox Church (Head office in Serbia) and the Serbian Orthodox Church Sveti Sava (London).  The first judgment records that Mr Aleksic’s net estate was valued at £1.8M.  Neither published judgment deals with costs, but I would be surprised if this was a Bleak House case given the value of the estate, especially as the second judgment was made on the basis of written arguments rather than a hearing.

Technology and informal wills 

Re Nichol isn’t the first case to decide that an informally created will on an electronic device (a word processed document on a computer, or an i-phone) is capable of being a “document” for the purposes of the statutory power to dispense with formalities.  The judgment refers to Re Yu [2013] QSC 322, another suicide case, where the deceased had made a series of documents using an app on his iPhone.  Most were final farewells to people, but one was expressed to be – and accepted as – his last will.  The Law Commission’s consultation describes some others (at footnote 77 to paragraph 6.111 on page 129) in other jurisdictions around the world.  It’s clear from these that the distinctive feature of Re Nichol was the fact that the document was an unsent text message, immediately begging the question of why it had not been sent if it truly reflected Mark’s intention – the question which is answered in the judgment.

One of the broader issues raised by creating wills on electronic devices is accessibility and obsolescence.  The Law Commission’s consultation discusses this at paragraph 6.89 on page 125, concluding that it is difficult to “future proof” an electronic document.  This is not a highlighted issue in cases like Re Nichol or Re Yu where the documents were created very shortly before death, and litigation has followed very shortly after death, but would be more of an issue if the law was changed to permit wills created on electronic devices as a matter of routine.

Informality and wills and other important personal documents

As I write this, a case is proceeding in the Court of Protection in which a judge is being asked to decide whether it is in the best interests of a 72 year old woman in minimally conscious state to have clinically assisted nutrition and hydration withdrawn, with the consequence that she will die.  Live tweets from @CDOCuk give a vivid impression of the evidence of members of her family, evidence which it is obviously distressing for them to have to give but without which the Court would have no insight into the woman’s presumed wishes and feelings, or her beliefs and values.  Amongst the evidence which they have given, they have referred to an email sent by the woman to a family member, talking about her father, who had dementia at the end of his life:

“Get the pillow ready if I get that way”

As @JennyKitzinger points out in the live tweets, that is not a legally binding advance decision to refuse treatment.  She also refers to another case about withdrawal of medical treatment, Re D [2012] EWCOP 885,  where a man who was in a persistent vegetative state following a cardiac arrest in the course of surgery to treat complications of cancer, had written this letter to his sister-in-law:

“To whom it may concern: I authorise [and then G’s name and address] to act on my behalf in the event of me being unable to make decisions for whatever reason. In particular, I authorise the above to liaise with the medical profession in making decisions regarding any further medical treatment. More specifically, I refuse any medical treatment of an invasive nature (including but not restrictive to placing a feeding tube in my stomach) if said procedure is only for the purpose of extending a reduced quality of life. By reduced quality of life, I mean one where my life would be one of a significantly reduced quality, with little or no hope of any meaningful recovery, where I would be in a nursing home/care home with little or no independence. Similarly, I would not want to be resuscitated if only to lead to a significantly reduced quality of life.”

As the judge (Mr Justice Jackson) said, the views that D had expressed in that letter

“are views which cannot directly be acted upon in the current situation because they do not comply with the understandably strict requirements of the Mental Capacity Act 2005 [section 25(6) which requires a statement in writing which is signed and witnessed]”

although he went on to say that

“had there been anything to put in the balance against the other evidence, D’s wishes would have carried very great weight with me”.

Advance decisions to refuse treatment are not the only Mental Capacity Act documents to have strict formalities requirements.  The same is true of lasting powers of attorney, which require not only a prescribed form, but the involvement of a certificate provider, who confirms that the person creating the power has capacity to do so and is not doing so as a consequence of undue pressure imposed by someone else.

In the case currently being heard in the Court of Protection, it is clear that giving and assessing the evidence will involve deciding what weight the “get the pillow ready” email should have in considering P’s past and assumed present wishes.  It is a much more informal statement than the letter in Re D, and it is reasonable to wonder whether it was just a momentary flippancy or reflected a deeply-held view, and to consider what P would actually have said if confronted with the actual question of whether or not she would wish to continue life-support in a prolonged disorder of consciousness.    Although in both cases a properly executed advance decision would have avoided court proceedings altogether, both cases  illustrate that even where there is no formal binding advance decision to refuse treatment an informal expression of wishes can still be highly relevant evidence.  Section 4(6)(a) of the Mental Capacity Act 2005 specifically mentions “any relevant written statement made by him when he had capacity” when it directs the decision-maker to consider the person’s past and present wishes and feelings.  By contrast, no informal expression of wishes can control the disposition of an estate, unless a dispensing power is used to permit the informal expression to be treated as a will.  But there is still an inconsistency between the proposed operation of a dispensing power for strict formalities for wills, and not for other documents of great consequence at a time when a person is no longer able to express wishes for him or herself, and plenty of scope for future debate on how widely dispensing powers should extend.