I recall almost nothing from the one law class I took in college. I probably have as much legal knowledge from that single semester as I do from three seasons of watching "Law and Order." But I do remember the difference between libel and slander (writing that a person is an idiot vs. saying it). Also, you can't be placed in double jeopardy (you can't be tried twice for being an idiot, unless you are stupid on different occasions). And that even if you are an idiot, your word is your bond. Or in more formal language, a verbal contract is as good as a written one.
Those among you with esquire after your name will tell me there are all kinds of caveats and qualifiers and exceptions to that last rule. But what I took away from it is that form is less important than intent. Indeed, it seems that in many legal issues, while the letter of the law is a significant factor, what is actually more important is the underlying driver behind the action.
Fortunately I've never had to test that understanding in court. Still, the concept came to me as I read of the ruling of a judge from Down Under. In the case of Nichol vs. Nichol, the Honourable Justice Susan (Sue) Brown had to grapple with just such an issue, though one more unique to our times. The fact that it surfaced in Australia as opposed to on these shores does nothing to diminish the significance of the case. Indeed, it is likely only a matter of time before something similar pops up in Duluth or Abilene or Katonah.
It's all about the last wishes of Mark Nichol. Nichol took his own life in Queensland about a year ago at the too-young age of 54. A man of modest means, he had struggled with depression, and indeed had attempted suicide in the past. This time he succeeded, leaving behind his wife Julie, brother David and nephew Jack. Also left behind was a note: "Dave Nic you and Jack keep all that I have house and superannuation, 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. 10/10/2016 My will." It also included directions as to where his wallet was located and his bank PIN number.
By itself, nothing remarkable. A direction as to disposition of assets. A personal comment. A date. A declaration of the document's purpose. All common attributes of final directions. There was just one small wrinkle: it was an unsent text message.
His wife Julie and her nephew contended that the form itself invalidated the product. By law, a will usually has to be in writing, signed by the person making it and witnessed by two people. Except for the writing, none of that applied in this case. But judges in Oz are given discretion in the form of "remedial" power over documents, including electronic ones, that don't meet older standards. The Court can take into account evidence related to the way the document was executed, as well as a person's intentions and other factors.
And so when brother David and nephew Jack took it to court, Judge Brown took it all into consideration. After thinking it through, she was satisfied that the message was admissible as a last well and testament. Indeed, the fact that it was not sent was not persuasive against it, as wife Julie contended, but rather a factor for it. the judge ruled that since the phone was with him when he took his own life, and the message had not been sent, it indicated that he was of sound mind. Sending it would have alerted his brother of his intention to commit suicide. Not sending it and allowing it to be found later showed forethought and planning, all marks of an effective testamentary document.
Legal purists might scoff at this, saying a text message can hardly be taken as a formal document. It'll never happen here, they might say: we take our jurisprudence much more seriously. Then again, look at Washington, where the President makes foreign policy via Twitter. In that light, how long before we do jury service via Skype? As Dylan said, the times they are a changin'.
-END-
Marc Wollin of Bedford knows just enough law to be dangerous. His column appears regularly in The Record-Review, The Scarsdale Inquirer and online at http://www.glancingaskance.blogspot.com/, as well as via Facebook, LinkedIn and Twitter.
Those among you with esquire after your name will tell me there are all kinds of caveats and qualifiers and exceptions to that last rule. But what I took away from it is that form is less important than intent. Indeed, it seems that in many legal issues, while the letter of the law is a significant factor, what is actually more important is the underlying driver behind the action.
Fortunately I've never had to test that understanding in court. Still, the concept came to me as I read of the ruling of a judge from Down Under. In the case of Nichol vs. Nichol, the Honourable Justice Susan (Sue) Brown had to grapple with just such an issue, though one more unique to our times. The fact that it surfaced in Australia as opposed to on these shores does nothing to diminish the significance of the case. Indeed, it is likely only a matter of time before something similar pops up in Duluth or Abilene or Katonah.
It's all about the last wishes of Mark Nichol. Nichol took his own life in Queensland about a year ago at the too-young age of 54. A man of modest means, he had struggled with depression, and indeed had attempted suicide in the past. This time he succeeded, leaving behind his wife Julie, brother David and nephew Jack. Also left behind was a note: "Dave Nic you and Jack keep all that I have house and superannuation, 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. 10/10/2016 My will." It also included directions as to where his wallet was located and his bank PIN number.
By itself, nothing remarkable. A direction as to disposition of assets. A personal comment. A date. A declaration of the document's purpose. All common attributes of final directions. There was just one small wrinkle: it was an unsent text message.
His wife Julie and her nephew contended that the form itself invalidated the product. By law, a will usually has to be in writing, signed by the person making it and witnessed by two people. Except for the writing, none of that applied in this case. But judges in Oz are given discretion in the form of "remedial" power over documents, including electronic ones, that don't meet older standards. The Court can take into account evidence related to the way the document was executed, as well as a person's intentions and other factors.
And so when brother David and nephew Jack took it to court, Judge Brown took it all into consideration. After thinking it through, she was satisfied that the message was admissible as a last well and testament. Indeed, the fact that it was not sent was not persuasive against it, as wife Julie contended, but rather a factor for it. the judge ruled that since the phone was with him when he took his own life, and the message had not been sent, it indicated that he was of sound mind. Sending it would have alerted his brother of his intention to commit suicide. Not sending it and allowing it to be found later showed forethought and planning, all marks of an effective testamentary document.
Legal purists might scoff at this, saying a text message can hardly be taken as a formal document. It'll never happen here, they might say: we take our jurisprudence much more seriously. Then again, look at Washington, where the President makes foreign policy via Twitter. In that light, how long before we do jury service via Skype? As Dylan said, the times they are a changin'.
-END-
Marc Wollin of Bedford knows just enough law to be dangerous. His column appears regularly in The Record-Review, The Scarsdale Inquirer and online at http://www.glancingaskance.blogspot.com/, as well as via Facebook, LinkedIn and Twitter.
No comments:
Post a Comment