A Loved One Leaves an Informal Will. What Happens Next?

Queensland courts can accept informal Wills—documents that don’t meet all the usual legal formalities, like having two witnesses. But getting one recognised can be challenging, expensive, and far from guaranteed.

So, what counts as “informal”?

Take, for example, a son who discovers a draft email on his late father’s computer. In the message, the father says the son should take over the family business, and the rest of the estate should go to the other children. Even though the email clearly shows the father’s wishes, it was never completed or witnessed. Unless there’s strong proof that the father meant this draft to be his final Will, a Queensland court may not consider it legally valid.

Situations like this are surprisingly common in Queensland, where more than half of adults don’t have a valid, up-to-date Will.

The Legal Test Courts Use

Queensland courts consider applying a three-step test from the landmark case Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 to determine if informal Wills are valid:

Step 1: Is there a document? Courts interpret “document” very broadly, from handwritten notes to digital files.

Step 2: Does it show testamentary intentions? The document must clearly express wishes about who gets what after death, not just casual comments about inheritance.

Step 3: Did they intend it to work as their Will? This is the crucial test. The person must have intended this specific document to operate as their final Will “without more”, meaning without needing to do anything else.

Types of Documents Courts Have Accepted

Courts have recognised a wide range of informal Wills:

• Handwritten notes and letters: Personal notes found in belongings, letters to family members, or diary entries can qualify if they clearly express final wishes.
• Electronic documents and phone communications: Courts have accepted:
• Unsent text messages
• Computer documents saved as drafts
• Voice recordings stating testamentary wishes
• Video recordings purported as a Will
• Insurance and beneficiary forms: The case of Selig v Selig [2024] QSC 189 shows how courts can recognise multiple documents together as a single informal Will when a man successfully combined a handwritten “My Wishes” funeral arrangement booklet with a completed life insurance beneficiary form.

Why Applications May Fail

Understanding failure patterns helps families assess their chances realistically:

Ambiguous future language: A handwritten note that refers to making a new Will later can be seen as future intent, not a valid Will.

Changed intentions after writing: In Lindsay v McGrath [2015] QCA 206,  even clear testamentary content can fail if there is insufficient evidence the person intended those specific documents as their final Will.

Mental capacity concerns: Courts must be satisfied that the person understood what they were doing. Cognitive decline, emotional volatility, or depression at the time of writing can undermine applications.

Lack of witnesses or corroboration: While informal Wills don’t need witnesses, having people who can testify about the person’s intentions significantly strengthens cases.

Case Highlight: Wool v Marino [2024] QSC 89

The case of Wool v Marino involved a mother, Erika, who excluded her daughter Juliana from her 2020 Will after their relationship deteriorated due to financial disagreements. Instead, Erika left her estate to the RSPCA and two friends, explicitly citing their fractured relationship.

A month before she died in 2022, Juliana discovered a handwritten note stating: “I AM CHANGING MY WILL!” and “I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA.”

However, the Supreme Court rejected it as an informal will due to the line: “WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER,” which showed Erika intended to formalise the change later. Her failure to do so, along with evidence of declining cognition and emotional instability, led the court to conclude the note was not a valid Will.

The Risks and Costs Involved

Pursuing informal Will recognition involves significant challenges:

Financial costs

• Supreme Court proceedings can cost thousands of dollars
• Lawyer costs can take up a large portion of a small estate.
• Even successful applications involve considerable expense

Time delays

• Applications can take months or years to resolve
• Estate administration can be frozen during proceedings
• Beneficiaries can’t receive inheritances until matters are settled

Family conflict

• Disputes often intensify when informal Wills benefit different people than formal Wills or intestacy laws
• Relationships can be permanently damaged
• Emotional stress compounds grief

Uncertain outcomes

Each case depends on specific facts and evidence. Even seemingly strong cases can fail if courts aren’t convinced about the deceased’s true intentions.

When Courts Can Work with Copies

Sometimes, original documents are lost or destroyed. The Selig v Selig case shows courts can still proceed if:

• There is proof the document existed
• The copy accurately reflects the original content
• There is proof showing how the original document went missing
• Witnesses can verify the document’s contents and execution

However, working with copies makes applications more complex and potentially less likely to succeed.

Practical Advice for Families

If you’ve found a potential informal Will:

Gather evidence immediately

• Preserve all documents exactly as found
• Interview anyone who knew about the deceased’s intentions
• Document where and how materials were discovered
• Collect any supporting communications or statements

Assess the strength of your case

• The document should clearly reflect what the deceased wanted to happen after their death.
• It should include explicit statements that it is intended to be a Will.
• Witnesses need to confirm what the deceased intended.
• There must be evidence that the deceased had mental capacity when the document was written.

Seek early legal advice

Experienced Estate Planning Lawyers such as ours can assess prospects realistically and guide families through complex decisions about whether to proceed.

Preventing Informal Will Problems

The best protection against informal will complications involves:

Creating proper formal Wills

• Use qualified legal professionals
• Follow all execution requirements precisely
• Check and revise your Will when your situation changes

Avoiding confusing communications

• Don’t create documents that could be mistaken for Wills
• If circumstances change, update formal wills rather than writing notes
• Clearly label drafts or preliminary thoughts as such

Clear communication with family

• Discuss your intentions with loved ones
• Explain your reasons for decisions
• Consider mediation if family disputes seem likely

Conclusion

While the court may recognise informal Wills, these are risky and expensive to pursue. Courts may only uphold these if there is clear evidence your loved one genuinely intended that specific document to be their final Will, not just a note about future plans.

If you’ve found what might be an informal will, get legal advice quickly to assess your chances before spending thousands on uncertain court proceedings. Better yet, ensure your own family never faces this dilemma by creating a properly executed formal Will.

At ROC Legal, we guide families in navigating these complex situations. Should you need assistance with informal Will applications, talk to one of our Will Dispute Lawyers Brisbane or Will Dispute Lawyers Gold Coast.  If you want to create bulletproof estate planning documents, our Estate Planning Lawyers Brisbane and Gold Coast are ready to help. Contact us today for expert guidance.