A will is not automatically void because it is unsigned, unwitnessed or drawn by hand.
Ideally, one’s testamentary intentions should be formally recorded in a professional Will, in order to avoid the later expense of involving the Court. For a multitude of reasons, this is not always the case in reality.
Hall v Hall 2026 [QSC] 134 is a recent example of the court’s ability to recognise a range of informal wills, even when they lack the formality requirements under the Succession Act 1981 (QLD).
The starting point: a valid will
The law that governs Wills and Estates in Queensland the Succession Act 1981 (QLD), sets out three requirements for a valid Will in Section 10:
- It must be in writing;
- it must be signed by the testator (or someone else at their direction); and
- It must be signed by two witnesses.
(“the formality requirements”)
What happens when a Will lacks formalities?
The Succession Act recognises that not everyone is aware of the formality requires or able to comply with them, and that this alone should not deprive them of achieving their testamentary wishes. Section 18 of the Succession Act allows a court to disregard any of the formality requirements so long as:
- There was a document;
- the document stated a testamentary intention; and
- that document was intended to operate as a will with no further steps.
Case study – Hall v Hall 2026 QSC 134
The Rockhampton decision of Hall v Hall is a recent example of how the formality requirements can be dispensed with in certain circumstances. In that decision, Crow J took a two-stage approach to determining the validity of the Will:
First Question: Was it a Valid Will?
Second Question: Did the Testator have capacity at the time the Will was made?
Facts
Ms. Hall (“the Deceased”) died between 18-19 January 2025 at her home, the suspected cause of death being suicide by ingestion of alcohol and a range of medications. The cause of death was not contested. The deceased had a Daughter and two sons at the time of her passing.
A police report stated that a note signed by the deceased, was located on a couch downstairs from where her body was found. The note appeared to be a crude last will stating:
“THIS IS MY LAST TEST ANYTHING THAT I HAVE GOAS (SIC) TO MY DAUGHTER NIKOLE LEE ANN HALL ITS NOT MUCH BUT ITS HERE (SIGNATURE)”
The Proceeding
The Deceased’s daughter and sole beneficiary under the note brough an application for Letters of Administration of her mother’s estate including that:
- The note be recognised as the last will; and
- she be appointed as administrator of the estate.
The two sons of the deceased, who had not been included in the note, resisted the application on the basis that the note could not constitute a will and that the deceased did not have testamentary capacity to execute the document in any event, given the toxicology evidence of alcohol consumption shortly before the deceased’s death.
Crow J concluded that the Note constituted a will and that the deceased had testamentary capacity to make the will.
Did the deceased have capacity to sign the will?
The central question before the court was whether the deceased had the requisite testamentary capacity to make a Will in circumstances where the cause of death was suicide by ingestion of drugs and alcohol. The well-known formulation of testamentary capacity focuses on four key questions of the testator:
- that the testator is aware, and appreciates the significance, of the act in the law which he or she is about to embark upon;
- that the testator is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he or she has a disposing power;
- that the testator is aware of those or may reasonably be thought to have a claim upon his or her testamentary bounty, and the basis for, and nature of, the claims of such persons;
- that the testator has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.
Crow J found that the deceased had the requisite capacity to make the Will. In support of this finding was the fact that she had taken a photo of the document at 4:03pm. It was said that:
[25] The fact that the deceased took the photograph but did not send it to any person seems to me to be a deliberate act by Ms Hall to prove that at the time she had executed the document, she was not intoxicated. The document was executed prior to 4:03pm, and that was at a time well prior to her time of death.
little weight was given to the fact that the last will contained a typographical error:
[27[ The fact that there is the other occasional spelling error shown in the texts on that day does lead to the conclusion that the deceased, like many persons, was prone to the occasional spelling error.
Conclusion and orders
On the basis that the deceased had mental capacity to create a will and that the Section 18 requirements had been met, probate of the informal will was granted to the Applicant.
Key Takeaways
There is no substitute for the proper preparation of your last will by a suitably experienced lawyer. The case of Hall v Hall is an example of the legal costs that that can burden your estate in the long term if a formal will is not executed.
At Rostron Carlyle Lawyers, Michael Sing is experienced in complex and contested probate matters and can help you navigate this difficult and often emotional process. If a loved one has recently passed with an informal will, and you are the executor or a beneficiary, contact our Partner Michael Sing to assist you.
Disclaimer: This publication is intended to provide general information only and does not constitute legal advice. Specific legal advice should be obtained based on your individual circumstances.
