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  • An informal will may be found in almost any format and made in almost any manner.
  • A person seeking to establish intestacy should negate an informal will (as well as a will); an executor seeking probate should make reasonable enquiries and searches for an informal will.
  • A legal personal representative has a clear obligation to disclose a document which may be an informal will.

On 17 August 2018, BBC News reported: “Texting is not an acceptable way of writing will, French court rules”. It revealed that a court in France had held that a man’s text message, that his mother receive a share of his estate, did not constitute a valid will. The news item contrasted with an earlier BBC News report from 11 October 2017 which said: “Unsent text accepted as dead man’s will by Australian court”. The news referred to the decision of Re Nichol; Nichol v Nichol [2017] QSC 220 (‘Re Nichol’). The decision that a will could be made by an unsent text message was not only mentioned on the BBC news, but found its way into the England and Wales Law Commission’s report on reforming wills. It demonstrated that, in Australia, an ‘informal will’ could be found in almost any form and made in almost any manner.

A feature of Re Nichol was that Mr Nichol’s unsent message was found by accident. After his self-inflicted death, a friend of his widow searched his phone to find the contacts to be notified about the funeral. The existence of the unsent text was then disclosed to all concerned, although it had the potential (which was realised) to adversely affect the wife’s interests. The questions explored in this article arise in that context.

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