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

SUPREME COURT OF QUEENSLAND

CITATION:

Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

PARTIES:

JULIE ELLEN NICHOL

(applicant)

v

DAVID ALLAN NICHOL AND JACK DAVID NICHOL

(respondents)

FILE NO/S:

BS 219 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2017

JUDGE:

Brown J

ORDER:

The order of the court is that:

Pursuant to s 18 of the Succession Act 1981 (Qld) the execution requirements of the purported testamentary document of the deceased, being an unsent text (SMS) message as exhibited to the affidavit of Julie Ellen Nichol filed 13 January 2017 and marked exhibit “A”, (“the will”) be dispensed with;1.

Subject to the formal requirements of the Registrar, the will be admitted to probate in a solemn form in favour of the respondents;2.

The letters of administration be granted to the respondents as administrators of the will;3.

The costs of Julie Ellen Nichol, David Allan Nichol and Jack David Nichol of this proceeding on an indemnity basis be paid out of the deceased’s estate, save that Julie Ellen Nichol bear her own costs in relation to the appearance on 31 January 2017.4.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – application pursuant to s 18 Succession Act 1981 (Qld) that the Court dispense with execution requirements for a will – where the deceased took his own life – where the deceased created a text message on his mobile phone shortly before he died – where text message not sent – whether unsent text message on deceased’s mobile phone stated testamentary intention – whether the deceased had testamentary capacity at the time of creating the message – whether deceased intended unsent text message to operate as his will – where the deceased otherwise intestate

Acts Interpretation Act 1954 (Qld)

Succession Act 1981 (Qld)

Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Fast v Rockman [2013] VSC 18
Frizzo v Anor v Frizzo & Ors [2011] QCA 308
Frizzo v Anor v Frizzo & Ors [2011] QSC 107
Hatsatouris v Hatsatouris [2001] NSWCA 408
Konui v Tasi & Anor [2015] QSC 74
Lindsay v McGrath [2016] 2 Qd R 160
Mellino v Wilkins [2013] QSC 336
Re Estate of Hodges:Shorter v Hodges (1998) 14 NSWLR 698
Re Kelsall [2016] VSC 724
Re Masters (deceased) (1994) 33 NSWLR 446

Re Yu [2013] QSC 322

COUNSEL:

R D Williams for the applicant

J K Meredith for the respondent

SOLICITORS:

MLDG Lawyers for the applicant

Lewis & McNamara Solicitors for the respondent

JBROWN: I have two competing applications before me in relation to this matter. One application is for a grant of letters of administration on intestacy, the other is an application that an unsent text message on the mobile phone of Mark Nichol, the deceased, be treated as a will pursuant to s 18…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Re Nichol; Nichol v Nichol and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QSC 220
Decision Date: 9 October 2017

CaseChat Overview and Summary

The case of Re Nichol; Nichol v Nichol involved a dispute regarding the validity of an unsent text message as a testamentary instrument. The deceased, who had taken his own life, left behind a text message on his mobile phone that was not sent. The applicants sought to have the text message recognised as the deceased's will. The court was tasked with determining whether the unsent text message constituted a valid testamentary document, whether the deceased had testamentary capacity at the time of creating the message, and whether the deceased intended the message to operate as his will.

The legal issues before the court included whether an unsent text message could satisfy the requirements of a valid testamentary document under the Succession Act 1981 (Qld), specifically whether it was intended by the deceased to operate as his will. The court had to consider the intention of the deceased and whether there was testamentary capacity at the time the message was drafted. The court also examined the provisions of section 18 of the Succession Act, which allows the court to dispense with the formal execution requirements of a will if satisfied that the deceased intended the document to be their will and that the document expresses the deceased's testamentary intentions.

The court concluded that the unsent text message did indeed represent the deceased's testamentary intentions and that the deceased had testamentary capacity at the time of creating the message. The court held that the text message was intended to be the deceased's will, and therefore, it should be admitted to probate. The court dispensed with the formal execution requirements under section 18 of the Succession Act, allowing the text message to be recognised as a valid testamentary document. The court granted letters of administration to the applicants and ordered that the costs of the proceeding be paid from the deceased's estate, with certain exceptions.

Orders

Orders of the court

The order of the court is that:

Pursuant to s 18 of the Succession Act 1981 (Qld) the execution requirements of the purported testamentary document of the deceased, being an unsent text (SMS) message as exhibited to the affidavit of Julie Ellen Nichol filed 13 January 2017 and marked exhibit “A”, (“the will”) be dispensed with;1.

Subject to the formal requirements of the Registrar, the will be admitted to probate in a solemn form in favour of the respondents;2.

The letters of administration be granted to the respondents as administrators of the will;3.

The costs of Julie Ellen Nichol, David Allan Nichol and Jack David Nichol of this proceeding on an indemnity basis be paid out of the deceased’s estate, save that Julie Ellen Nichol bear her own costs in relation to the appearance on 31 January 2017.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Nichol; Nichol v Nichol & Anor [2017] QSC 220
PARTIES:	JULIE ELLEN NICHOL (applicant) v DAVID ALLAN NICHOL AND JACK DAVID NICHOL (respondents)
FILE NO/S:	BS 219 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2017
JUDGE:	Brown J
ORDER:	The order of the court is that: Pursuant to s 18 of the Succession Act 1981 (Qld) the execution requirements of the purported testamentary document of the deceased, being an unsent text (SMS) message as exhibited to the affidavit of Julie Ellen Nichol filed 13 January 2017 and marked exhibit “A”, (“the will”) be dispensed with;1. Subject to the formal requirements of the Registrar, the will be admitted to probate in a solemn form in favour of the respondents;2. The letters of administration be granted to the respondents as administrators of the will;3. The costs of Julie Ellen Nichol, David Allan Nichol and Jack David Nichol of this proceeding on an indemnity basis be paid out of the deceased’s estate, save that Julie Ellen Nichol bear her own costs in relation to the appearance on 31 January 2017.4.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – GENERALLY – application pursuant to s 18 Succession Act 1981 (Qld) that the Court dispense with execution requirements for a will – where the deceased took his own life – where the deceased created a text message on his mobile phone shortly before he died – where text message not sent – whether unsent text message on deceased’s mobile phone stated testamentary intention – whether the deceased had testamentary capacity at the time of creating the message – whether deceased intended unsent text message to operate as his will – where the deceased otherwise intestate Acts Interpretation Act 1954 (Qld) Succession Act 1981 (Qld) Banks v Goodfellow (1870) LR 5 QB 549 Briginshaw v Briginshaw (1938) 60 CLR 336 Fast v Rockman [2013] VSC 18 Frizzo v Anor v Frizzo & Ors [2011] QCA 308 Frizzo v Anor v Frizzo & Ors [2011] QSC 107 Hatsatouris v Hatsatouris [2001] NSWCA 408 Konui v Tasi & Anor [2015] QSC 74 Lindsay v McGrath [2016] 2 Qd R 160 Mellino v Wilkins [2013] QSC 336 Re Estate of Hodges:Shorter v Hodges (1998) 14 NSWLR 698 Re Kelsall [2016] VSC 724 Re Masters (deceased) (1994) 33 NSWLR 446 Re Yu [2013] QSC 322
COUNSEL:	R D Williams for the applicant J K Meredith for the respondent
SOLICITORS:	MLDG Lawyers for the applicant Lewis & McNamara Solicitors for the respondent