I have written often about the remarkable level of innovation and change that has occurred in the world over the last 30 or so years and the implications for trusts and private client practitioners. I have also highlighted the extent to which our judiciary, particularly in trusts and estates matters, is faced with issues that relate directly to the increasing ease of access to information, changes in society’s customs and beliefs and technological advancement.
This theme is clearly illustrated in a recent Australian case from the Supreme Court of Queensland. In Nichol v Nichol the court dispensed with the execution requirements for a valid will, finding that an unsent text message held in the deceased’s draft messages on his mobile telephone amounted to his valid will.
The execution requirements for making a valid will in the Cayman Islands are set out in the Wills Law (2004 Revision). It is also a requirement of Cayman Islands law that a testator must have testamentary capacity at the time of creating his will. The test for testamentary capacity, known as the “golden rule,” was first elucidated in the English case of Banks v Goodfellow and it remains good law in the Cayman Islands today:
(a) Does the testator understand the nature and effect of what he is doing;
(b) Is he aware, broadly, of the extent of his estate;
(c) Does he appreciate the claims of those who might reasonably expect to benefit from his estate; and
(d) In considering (c), is there any disorder of the mind or insane delusion that will influence the disposition of his property or poison his affections such that he would make a disposition of property that he would not otherwise have made.
In summary, the Wills Law provides that a will must be in writing; it must be signed by the testator or by some other person in his presence, at his direction. If the latter, the testator must acknowledge such signature in the presence of two witnesses present at the same time. If the former, the testator’s signature must be attested to by two witnesses present at the same time in his presence. Subject to only two exceptions for soldiers and sailors on active service, the execution requirements must be complied with; if not, it will be invalid.
Save for the exceptions described above, Cayman Islands law does not, as a general principle, permit holographic wills. Holographic wills are documents that are usually handwritten and do not comply with the strict requirements for proper execution as a will but have nevertheless been written as testamentary documents, often in extreme circumstances. The most famous holographic will may be that of Cecil George Harris, a Canadian farmer who in 1948 suffered the misfortune of becoming trapped under his tractor and fearing (rightly) that he was about to die, carved a will into the fender which read, “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” The fender was submitted to probate as his valid holographic will.
Queensland legislation also allows for holographic wills, meaning that the courts there can, in certain circumstances, adopt a more flexible approach. The facts of the Nichol case were this. The deceased suffered from depression and tragically, took his own life, leaving behind his wife Julie and son, Anthony, from a prior relationship. The deceased was also survived by his brother David, and his mother.
The deceased and Julie had been married for a year and in a relationship for almost four years. The couple had been having problems for some time, Julie having left him at least three times, the final time only days before his death. Notwithstanding that fact, she continued to make arrangements to take her husband to his medical appointments and they had spent the weekend prior to his death together doing gardening and boxing up books for a charity.
The mobile telephone containing the unsent text message was found on the workbench in the shed where the deceased’s body was discovered by Julie on Oct. 10, 2016. The following day, she asked a friend to access its contacts list so they could work out who to inform of the deceased’s death. On finding the text message, the friend informed Julie, the deceased’s brother David and nephew Jack.
The message said:
“Dave Nic, you and Jack keep all that I have house and superannuation, put my ashes in the back garden … [wife] 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 [the deceased’s initials and date of birth] … 10/10/2016 … My will.”
The court was faced with two competing applications: the first made by Julie, supported by Anthony, that she be granted letters of administration on the basis that the deceased had died intestate. The competing application was made by David and Jack with the support of the deceased’s mother, that the unsent text message be treated as a will and the usual execution requirements dispensed with.
Local succession law set out three conditions for the waiver of the execution requirements for a valid will: (i) there must be a document; (ii) it must embody the testamentary intent of the deceased; and (iii) the court must be satisfied upon careful consideration of the evidence that the deceased intended that document to operate as his will. The court would have regard, amongst other things, to the manner in which the document was executed and any extrinsic evidence of testamentary intention, like other documents, acts of or statements made by the deceased.
The court would also have to be satisfied that the deceased had testamentary capacity at the time the document was created. It was for those propounding the holographic will to prove that the deceased had the necessary capacity, in the Nichol case, David and Jack.
Applying the reasoning of the Queensland Supreme Court in Re Yu which involved a Word document created and stored on an iPhone, the court held that a text message could constitute a document for the purposes of the legislation. Despite its informality, the text message did state the deceased’s testamentary intentions – it disposed of the entirety of his estate and gave instructions for the disposal of his ashes. The court was satisfied that the deceased intended it to operate as his will, given that it was created shortly before his death.
No other will had been found and the terms of the text message were consistent with prior statements made by the deceased as to how he wished his estate to be disposed of after his death. The court rejected the suggestion that because it was saved as a draft he did not intend it to operate as his will, finding that having the phone with him when he died and not sending the text message were consistent with wanting it to be found with his body and not wanting to alert his brother to the fact that he was about to commit suicide.
Finally, the court rejected the argument that the fact that the deceased committed suicide gave rise to a presumption that he did not have the necessary mental capacity to make a will. Although there was no medical evidence proffered by either the applicant or respondent parties, the court heard evidence from the deceased’s family and friends describing his behavior leading up to his death. No one described him as acting erratically or so afflicted by depression that it was affecting his ability to think or function. He was functioning well enough to ask Julie to attend at his home to feed his dogs. He clearly understood the nature of his estate and appreciated those who might have a claim on it, facts supported by the reference to “my will,” the terms of the text message, specifically his reference to his wife Julie and the fact that she was to take what belonged to her from the house, and sought to effect the disposition of all of his assets. Although he did not mention his son Anthony, the court found that this was consistent with the fact that he had not been in regular contact with him and they had periods of estrangement. Despite the absence of medical evidence, the court found on the balance of probabilities that the deceased had the necessary mental capacity to create a valid will, consistent with the principles in Banks v Goodfellow.
As mentioned above, Australia, Canada and some states in the U.S. do permit holographic wills. In contrast, the Cayman Islands has not legislated to allow for holographic wills unless written by a member of the armed forces on active duty.
The administration of a deceased’s estate will be governed by the laws of his domicile. So as to avoid any risk of invalidity or questions from the court on a holistic will being submitted to probate for re-sealing here, it is essential to ensure that wills and estate planning are completed with proper consideration for and advice taken in the laws of the jurisdiction in which the assets are located.