Re Nichol; Nichol v Nichol & Anor [2017] QSC 220: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2017/220.html

Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2012/594.html

This series has previously referenced the British Columbia case of Hubschi Estate (Re),[1] in which the court ruled that a Microsoft Word document found on the deceased’s computer constituted a valid will under the curative provision in the Wills, Estates and Succession Act.[2] In reaching this decision, the court cited two Australian cases on the validity of electronic wills. One case concerned testamentary wishes expressed in an unsent text message, while the other also concerned a Word document. This blog will examine how the Australian courts evaluated these electronic documents under the governing statutes in their respective states.

Re Nichol (Supreme Court of Queensland)

Re Nichol involved two competing applications. The applicant sought a determination that Mark Nichol (“Nichol”), who had taken his own life, had died intestate. The respondents sought to establish the aforementioned text message as the Nichol’s will. The message, which was apparently addressed to Nichol’s brother, 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 applicant agreed that the message was testamentary in nature, but raised the issues of whether Nichol had intended that the message should operate as his will, and whether Nichol had testamentary capacity at the time he created the message.

S. 18 of the Succession Act 1981 (Qld) provides that a court “may dispense with execution requirements for will” if the “document” or “part of a document” in question:

• Purports to state the deceased’s testamentary intentions;
• Has not been formally executed; and
• Was intended to form a will.

Reviewing the relevant Queensland case law, Brown J. found that the evidence must not merely establish that the document expresses testamentary intentions, but specifically that the deceased intended the document to be their final will, and did not intend to change it. A valid will cannot be a document that “contain[s] only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions” or “[is] demonstrated to have been prepared for consideration, further thought, deliberation or possible provision”. Instead, it must have been intended to actually “operate to dispose of the deceased’s property upon death”.

There is also no presumption of testamentary capacity when the will has not been formally executed.

Nichol had given inconsistent information on whether he had made any other will or testamentary document, but no such document had been found. Brown J. reviewed evidence of Nichol’s assets, mental state, interpersonal relationships, and prior statements about his intentions, but did not receive any medical evidence.

Brown J. first established that the text message did constitute a “document” under Queensland law, and that the document expressed a testamentary intention by referring to itself as “my will,” and by making dispositions of specific assets, as well as plans for Nichol’s remains. The “informal nature of the text” did not prevent it from being a will.

On the question of whether Nichol had intended the message to operate as a will, the applicant emphasized that Nichol had not sent the message, while the respondents emphasized that it referred to itself as a will and purported to dispose of assets. Brown J. agreed with the respondents on this issue, and drew further inferences in their favour from the amount of detail in the message, yet found the applicant’s evidence unpersuasive in part because the phone had been found with Nichol after he had taken his own life. Brown J., reasoned that Nichol had probably intended that the message be found, but had not sent it, so as to avoid alerting others to his suicidal intentions.

On the issue of testamentary capacity, Brown J. found that the applicant’s evidence established that Nichol had been depressed and had some unstable relationships, but not that he had been unable to understand and appreciate his testamentary decisions. There was no evidence of Nichol “acting erratically, irrationally or being so afflicted by depression that it was affecting his ability to think or function.”

Alan Yazbek v Ghosn Yazbek & Anor (Supreme Court of New South Wales) 

This case was similar to Re Nichol, in that the primary issue was whether an electronic document constituted a will, or, whether, its maker, Daniel Yazbek (“Yazbek”), had died intestate. The document in question this time was a Microsoft Word file called “Will.doc.” The relevant legislative provision was s. 8 of the Succession Act 2006 (NSW), which, though worded slightly differently, is substantively similar to the Queensland provision described above.

The defendants, who opposed Will.doc’s validation, argued that Yazbek had printed, signed, and later destroyed a copy of this document, and that its destruction indicated that the electronic version no longer represented his testamentary intentions. The evidence that Yazbek had printed Will.doc was disputed, but was ultimately accepted by Slattery J..

Will.doc, which has not been reproduced here due to its length, made specific dispositions of most of Yazbek’s assets, but not all of them. Yazbek’s name was typed at the end, but was not “in the form of an electronic signature.” Will.doc was protected by a password on Yazbek’s computer, and was found by police after a member of his family guessed the password.

Slattery J., considered expert technical evidence on specifically when and how Yazbek had created, edited, and otherwise accessed Will.doc. The expert’s initial opinion was that Will.doc had not been printed, but he later revised his opinion to allow that it could have been printed, and the metadata available to him did not support a firm conclusion on this question. Slattery J’s reasons review this portion of the expert’s analysis at length. There was no evidence that Yazbek had ever emailed or otherwise transferred Will.doc to another device.

Like Brown J. in Re Nichol, Slattery J., first established that Will.doc constituted a “document,” and that it expressed the deceased’s testamentary intentions. The latter conclusion was supported by the fact that Will.doc made specific dispositions of a large proportion of Yazbek’s assets, that Yazbek had chosen the word “Will” for its title, and that he had made statements to his family throughout the document that were worded as if intended to be read after his death.

As in Re Nichol, the next stage of the analysis was to determine whether the deceased intended that the specific document in question actually operated as a will. Slattery J. reviewed several authorities from New South Wales and other states on this issue, as well as the principle that a suicide note can be a will.

Slattery J. found that Will.doc was intended to operate as a will because:

• Yazbek had chosen to name it “Will”;
• He had told others that he had made a will;
• He had been motivated to make it by an upcoming international trip;
• He had typed his name at the end;
• He had told others that the will was on his computer, and had kept Will.doc there for the remainder of his life; and
• He had accessed it, without changing or deleting it, less than three weeks before his death.

Slattery J., found that Yazbek had not revoked Will.doc, even if he had disposed of a printed copy, because Yazbek had not ever expressed that the printed copy had any pre-eminence over the electronic one, and again because he had accessed Will.doc without changing or deleting it so soon before his death. The decision notes that one reason Yazbek might have disposed of a paper copy was that he might have considered the electronic copy alone to be an adequate record of his intentions.

Slattery J. addressed two other arguments by the defendants: that Will.doc had merely been an interim will prepared for an oversees trip, and that it had merely been a draft will. In response to the first argument, Slattery J. noted that the text of Will.doc did not make any reference to it being an interim will, and that Yazbek had accessed Will.doc without changing it after the trip in question. Similarly, Will.doc did not contain any indication that it was a draft, and Slattery J. declined to draw this inference from the accepted fact that it had been printed.

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[1] 2019 BCSC 2040

[2] SBC 2009, c 13

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.