Unsent text with a smiley face accepted as dead man's will by Australian court

An Australian court has accepted an unsent text message with a smiley face on a dead man's mobile phone as an official will.

Mark Nichol, 55, composed a text message addressed to his brother, in which he gave "all that I have" to his brother and nephew.

The message was found in the phone's drafts folder, which was next to Nichol's body on a workbench in his shed last October.

The man's brother David Nichol and nephew, Jack Nichol, petitioned the court for the unsent text to be treated as a will.

But lawyers for the dead man's widow, Julie Ellen Nichol, argued that the fact that her husband had not sent the text message was consistent with him not having made up his mind.

However, a Queensland Supreme Court judge ruled that the wording of the text indicated that the man intended it to act as his will.

The unsent text read: "Dave Nic you and Jack keep all that I have house and superannuation [savings account], put my ashes in the back garden ... 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 ... 10/10/2016 My will". The message ended with a smiling emoji.

The court heard that the couple endured stormy relationship with his wife leaving Nichol three times over the last five years.

Mark Nichol had a history of depression and although he had previously attempted suicide had not made a formal will.

Typically, for a will to be valid in Queensland, it must be written and signed by two witnesses.

But Justice Susan Brown said the wording of the text message, which ended with the words "my will", showed that the man intended it to act as his will.

The judge said the "informal nature" of the message did not stop it representing the man's intentions, especially as it was "created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed".

In 2015, the New South Wales Supreme Court ruled a video will was valid and displaced a written will made just two days earlier.

The law in Queensland was changed to in 2006 allow less formal types of documents to be considered as a will.