QUEENSLAND ESTATE LITIGATION
What a recent Supreme Court decision shows about informal wills and testamentary capacity
Supreme Court of Queensland at Rockhampton | Hall v Hall & Hall [2026] QSC 134 | 15 June 2026
A handwritten will can be valid in Queensland if it meets the usual signing and witnessing requirements. If it does not, the Supreme Court may still accept the document as an informal will under section 18 of the Succession Act 1981 (Qld).
In a recent decision, the Supreme Court of Queensland accepted a short, signed handwritten note as the deceased’s will even though it was not witnessed. ROC Legal acted for the successful applicant. The decision shows how the Court approaches an unwitnessed will when testamentary capacity is disputed, and why the surrounding evidence can be more important than the form of the document.
Can a handwritten will be valid in Queensland?
Yes. A will does not fail simply because it is handwritten. A handwritten will is formally valid if it is signed with the intention of making a will and witnessed in accordance with section 10 of the Succession Act.
The difficulty arises when a handwritten note is signed but not properly witnessed, or when its status as a final will is unclear. In that situation, the document may be an informal will and a Supreme Court application may be needed before the estate can be administered under it.
The issue in the recent Queensland case
Shortly before the deceased’s death, a signed handwritten note was made leaving the estate to one child. The note was not signed in the presence of two witnesses. The original was no longer available by the time of the hearing, but photographs taken at the scene preserved its contents and appearance.
Other family members opposed the application. The central question was whether the deceased had testamentary capacity when the note was made and intended the note to operate as the will.
How does the Court decide if an informal will is valid?
Section 10 of the Succession Act 1981 (Qld) sets the usual requirements for making a will. In broad terms, a will must be in writing, signed by the will maker and witnessed by two people present at the same time.
Section 18 gives the Supreme Court power to dispense with those formal requirements. The Court must be satisfied that there is a document, that it states the deceased’s testamentary intentions and that the deceased intended the document to form the will.
In this matter, the existence of a document and its testamentary character were not in dispute. The real contest concerned intention and capacity.
What is testamentary capacity?
A person making a will must understand that they are making a will, have a general understanding of the estate, recognise the people who may reasonably expect to benefit and be able to weigh their competing claims.
The focus is the person’s capacity when the document was made. The circumstances of a later death, or evidence that alcohol or medication was present later, does not answer that question by itself. The Court must consider the evidence as a whole.
Why was the handwritten note accepted as a will?
The contemporaneous timeline
The Court examined the timing of messages and a photograph of the note stored on the deceased’s phone. That material helped identify when the note was likely written and signed. It also supported the conclusion that the note recorded a completed decision, not an idea left for later consideration.
The pattern of communications
The wording, spelling and timing of communications across the afternoon were relevant. The earlier communications were coherent. A marked change appeared later. There was no expert evidence establishing significant impairment at the time the note was made.
A consistent, long held intention
Evidence from family members and a long term friend showed that the deceased had expressed the same intended outcome over many years. Those statements did not replace the need to prove capacity, but they supported the conclusion that the note reflected a settled intention rather than a sudden or unexplained change.
Awareness of competing claims
The note excluded other children. That required careful scrutiny. The Court was satisfied, however, that the deceased was aware of the estate and the people who might expect to benefit, and was able to make a deliberate choice between them.
The Court’s decision
The Court was satisfied on the balance of probabilities that the deceased had testamentary capacity and intended the handwritten note to operate as the will.
The Court dispensed with the formal execution requirements and declared the note to be the deceased’s last will. Orders were made so that the estate could be administered using a copy of the note. The parties’ costs were ordered to be paid from the estate on the indemnity basis.
Will every unwitnessed document be accepted as an informal will?
No. A note that mentions inheritance or records a future intention to make a will is not necessarily a will. The person asking the Court to recognise an informal document must prove each statutory requirement and show that the deceased intended that particular document to operate as the will.
Where capacity is challenged, that can require a detailed chronology, evidence from people who knew the deceased, digital records and medical or other expert evidence. Each application turns on its own facts.
An informal will application can also delay the administration of an estate and reduce the amount ultimately available to beneficiaries. A properly drafted and witnessed will remains the safest way to record testamentary wishes.
What should you do if you find a possible informal will?
Preserve the document in its original condition. Do not write on it, staple it, remove pages or alter any envelope or attachment.
Record where and when it was found and who was present. Preserve relevant phones, messages, emails, photographs and account records. Their timing and context may matter.
Obtain advice before applying for a grant or distributing the estate. Early steps can protect the evidence and help identify the correct court process.
How ROC Legal can assist
ROC Legal acts in contested probate matters, including informal wills, testamentary capacity disputes and questions about the proper administration of an estate. If you have found a possible informal will, early advice can help preserve the evidence and clarify the available options.
If you have found a handwritten note or another document that may be a will, contact ROC Legal before applying for a grant or distributing the estate. Call 1300 196 219 or make an enquiry through the ROC Legal website.
Related information — Read ROC Legal’s practical guide to informal wills in Queensland
Legal assistance — Learn more about ROC Legal’s Queensland estate litigation services
Sources
- Judgment — Supreme Court of Queensland, [2026] QSC 134, delivered 15 June 2026
- Legislation — Succession Act 1981 (Qld), sections 10 and 18
The published reasons were reviewed in preparing this article. The current legislation was checked on 12 August 2026.
General information only — This article provides general information about Queensland law. It is not legal advice and should not be relied on as a substitute for advice about your circumstances.