Sat | Dec 16, 2017

Laws of Eve | Can we expect any amendment of the Wills Act?

Published:Monday | October 23, 2017 | 12:00 AM

One of the most exciting things about the law is that it is not static. In other words, there is always something new to learn because courts interpret facts in new and interesting ways or laws are either enacted or amended.

The headline, 'Unsent text message accepted as valid will by Australian court' on yahoo.com on October 12, 2017 captured my attention. The reason is that I am confident that there could be no such ruling in a Jamaican court since the Wills Act clearly states that a valid will must be in writing and signed by the testator and two witnesses.

Having read the judgment to which the case refers - Re Nichol; Nichol v Nichol & Anor [2017] QSC 220 - I am satisfied that the Succession Act pursuant to which two applications were filed in the Queensland Supreme Court arising from the death of Mark Nichol contains provisions that are not in the Jamaican Wills Act. For example, Section 18 of the Queensland Succession Act allows a court to find that any document that a person intends to be his will to actually be found to be his will.

Mark Nichols took his own life and, when his body was found, his mobile phone had an unsent text message. On the one hand, his widow asserted that he had died intestate, in which case she and his child would inherit his estate, while his brother and nephew contended that the text message was a valid will.

The text message, which was addressed to Mark Nichols' 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 court had to consider whether the requirements of Section 18 were satisfied in that the deceased had testamentary capacity; the text message could constitute a document; and the document purports to state the testamentary intentions of the deceased.

In concluding that the unsent text message was a valid will, the court found as follows:

The informal nature of the text did not exclude it from being sufficient to represent the deceased's testamentary intentions.

The terms of the text message were intended by the deceased to represent how he wished his property to be distributed upon his death. It was not merely an emotional expression of wishes.

The deceased either at the time of drafting the document or subsequently formed the intention that the particular document operate as his will.

The fact that the deceased committed suicide did not raise a presumption against testamentary capacity. Based on the evidence of persons who had interacted with him shortly before his death, the deceased was able to function and think normally.

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 surrounding circumstances also support the terms of the text as representing his testamentary intentions.

It was noted that, although she lost this claim, the deceased's widow still had the right to make an inheritance claim to say that the deceased made inadequate provision for her under his will.

Do you think our Wills Act will ever be amended.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com. www.eeoc.gov