When a loved one passes away, the last thing anyone wants is confusion about their final wishes. Yet this happens all too often when formal Will requirements aren’t met, leaving families to navigate the complexities of informal Wills. From unsent text messages to video recordings, Queensland courts have considered an astonishing variety of unconventional documents as potential Wills—with unpredictable results.
What is Considered an Informal Will?
An informal Will is any document expressing someone’s testamentary intentions that doesn’t comply with the formal requirements set out in section 10 of the Succession Act 1981 (Qld) [the Act]. While a formal Will must be in writing, signed by the testator (the Will-maker) in front of two witnesses who also sign the document, informal Wills take many shapes—from handwritten notes to digital messages.
However, section 18 of the Act gives the Supreme Court of Queensland authority to dispense with these formal requirements if certain conditions are met. This provision recognises that people sometimes express their final wishes outside traditional legal formats.
For the Court to recognise an informal Will, three key conditions must be satisfied:
- Testamentary Intent: The court must be satisfied that the person genuinely intended the document to function as their Will, rather than just expressing future intentions or hypothetical wishes.
- A Document Must Exist: There must be an actual physical or digital document that contains the person’s wishes.
- The Document Must Express Wishes for Property Distribution: The document needs to clearly indicate how the person wants their property distributed after death.
Under Queensland law, the term “document” is interpreted quite broadly and can include virtually any record of information—written, electronic, audio, or visual.
Examples of Accepted Informal Wills
Queensland courts have accepted some remarkable formats as valid Wills:
Unsent Text Messages
In the landmark case of Re Nichol; Nichol v Nichol [2017] QSC 220, the Supreme Court accepted an unsent text message as a valid Will. The message, found on the phone of a man who had taken his own life, clearly expressed his wishes regarding his property and specifically mentioned his intention to exclude his wife.
Video Recordings
In Mellino v Wnuk [2013] QSC 336, the Court recognised a video recording on a DVD as a valid Will. Similarly, in Estate of Leslie Wayne Quinn [2019] QSC 99, a video recorded on a smartphone shortly before the deceased’s death was accepted as a Will.
Electronic Documents
An unsigned electronic document saved on a computer can be considered valid, as in the case of Alan Yazbek V Ghosn Yazbek & Anor [2012] NSWSC 594. In this case, the Microsoft Word document contained clear testamentary language, was deliberately named “Will,” and multiple circumstances indicated he intended it to function as his will.
Notes on Mobile Devices
In the case of Re Yu [2013] QSC 322, the Queensland Supreme Court validated notes drafted on an iPhone as a Will. One of the documents began with “This is the last Will and Testament…” and was followed by his name and address.
Handwritten Notes Without Witnesses
In Re GEW [2020] QSC 119, a dated but unsigned handwritten note without witnesses was accepted as an informal Will.
Suicide Notes
Parts of suicide notes have sometimes been accepted as valid informal Wills where they clearly express testamentary intentions.
Incomplete Formal Documents
More recently, In the Will of Hans-Juergen Meyer [2024] QSC 141, the Court accepted an informal Will consisting of handwritten and typed pages that were signed by the testator but lacked witness signatures.
When Informal Wills Are Rejected
Not all informal documents are accepted as valid Wills. In Lindsay v McGrath [2015] QCA 206, the Queensland Court of Appeal refused to recognise a handwritten document as a valid Will, despite it clearly stating the deceased’s wishes.
After Nora Lindsay, the testator, passed away, her son Geoffrey found a five-page handwritten document inside an envelope labelled, “The envelope contains the Will of.” The document left her house to Geoffrey and explicitly disinherited his sister. Geoffrey applied to have it recognised under Section 18 of the Act, but the Court declined.
The Court identified several issues: parts of the document were torn, changes had been made in different inks, and it stated it was “for the purpose of making the will” rather than asserting “this is my will.”
Since Nora’s document appeared to be a work in progress rather than a finalised Will, the Court rejected it. This case underscores that merely recording testamentary wishes is not enough—clear intent for the document to be the deceased’s last Will is crucial.
Applying for Probate of an Informal Will
The process for having an informal Will recognised is more complex than with a formal Will. An application must be made to the Supreme Court of Queensland seeking a declaration under section 18 of the Act that the informal document constitutes the last Will of the deceased.
This application should include:
- The document claimed to be the informal Will
- Evidence supporting the document’s validity as a Will
- Information about any earlier effective Wills
- Information about who would be entitled under intestacy if the informal Will is not accepted
- Consents from or notices to persons adversely affected
The application should be filed within six months of the deceased’s death. If filed later, an explanation for the delay must be provided.
Factors the Court Considers
When determining if an informal document should be recognised as a Will, the Court considers various factors:
- The content of the document: Does it clearly express testamentary wishes?
- Evidence of the deceased’s intentions: Did they tell anyone about the document?
- Circumstances around the creation of the document: Why wasn’t a formal Will made?
- The deceased’s awareness of formal Will requirements: Did they know about proper procedures?
- How the deceased treated or stored the document: Was it kept with important papers?
- Timing: How close to death was the document created?
- Whether the document appears final or merely preparatory
The Risks and Pitfalls of Informal Wills
While Queensland law allows for informal Wills in certain circumstances, relying on them can create significant legal and emotional burdens for those left behind. The absence of a properly executed Will often leads to complications that can delay or disrupt estate administration.
Costly Court Proceedings
Unlike formal Wills, which are typically granted probate through a straightforward process, proving an informal Will requires a Supreme Court application under section 18 of the Act. This is a costly and time-consuming legal process, with fees often exceeding those of drafting a formal Will in the first place. If the Court rejects the document, the estate may need to be distributed under intestacy laws, which could be vastly different from the deceased’s intentions.
Uncertainty and Delay
Even with strong evidence of the deceased’s intentions, there is no guarantee the Court will accept an informal Will. Cases involving informal Wills can take months—or even years—to resolve, delaying the distribution of assets and causing financial hardship for intended beneficiaries.
Family Conflict
Disputes over informal Wills are common, particularly when the document is unclear, inconsistent, or excludes expected beneficiaries. The lack of formal execution often leads to challenges from family members who may feel unfairly treated, resulting in expensive and emotionally taxing legal battles.
Interpretive Challenges
Formal Wills are drafted using precise legal language to avoid ambiguity. Informal Wills, by contrast, are often handwritten, vague, or incomplete, making it difficult to determine the true intent of the deceased. Courts may struggle to interpret informal documents, leading to outcomes that may not fully align with what the deceased intended.
Increased Vulnerability to Challenges
Informal Wills are more susceptible to legal challenges based on:
- Lack of testamentary capacity: Was the deceased mentally competent when creating the document?
- Undue influence: Was the deceased pressured by someone else to write or alter the document?
- Fraud or forgery: Is there doubt about the document’s authenticity?
Without the safeguards of a formal Will, proving or disproving these claims can be difficult, increasing the risk of prolonged litigation.
By understanding these risks, individuals can take proactive steps to ensure their estate planning is legally sound, protecting their loved ones from unnecessary stress and financial strain.
Best Practices for Estate Planning
To avoid the pitfalls of informal Wills:
- Create a formal Will that meets all legal requirements, preferably with professional legal assistance.
- Update your Will regularly, especially after major life events like marriage, divorce, births, or deaths.
- Store your Will safely where it can be easily found, and inform your executor of its location.
- If you find what might be an informal Will after someone’s death, preserve it exactly as found and seek legal advice immediately.
- Document the circumstances of finding potential informal Wills, including dates, locations, and who was present.
Conclusion
Informal Wills in Queensland represent a legal safety net, ensuring that genuine final wishes aren’t disregarded solely due to procedural defects. However, they should never be the first choice for estate planning. The unpredictability, expense, and potential for family conflict make formal Wills preferable.
At PD Law, we can help you create a legally valid Will that protects your assets and clearly expresses your wishes. Whether you’re drafting a new Will, updating an existing one, or dealing with a potential informal Will as an executor or family member, we can guide you through the complexities of having it recognised by the Court. Talk to one of our Cannonvale Estate Planning Lawyers today to ensure your legacy is protected or your loved one’s wishes are honoured.
