Informal wills in Queensland: can a text message or note count?

Most people assume a will is only valid if it is signed in front of two witnesses. In Queensland that is the rule - but not the whole rule. Section 18 of the Succession Act 1981 (Qld)¹ allows the Supreme Court to accept a document that misses those formalities as an informal will. The question families end up asking, often too late, is whether that message or note their relative left behind actually counts²³.

What counts as a document

The definition is deliberately broad. It includes anything containing information: paper notes, letters, computer files, phone messages and unsent email drafts have all featured in Australian cases. The famous cases involve farm diaries and word processor files where the deceased recorded final wishes but never executed a formal will.

A text message can therefore qualify in principle. Whether it does depends on content and context, not the medium.

The three requirements

For the court to dispense with the formalities, three things must be established on the balance of probabilities:

• A document exists - broadly interpreted, as above
• It records testamentary intentions - who gets what, on death
• The deceased intended that document to operate as their will - not merely as ideas, wishes or instructions to a solicitor

The third element defeats most applications. A message saying the house should go to my sister may show intent; a series of frustrated texts during an argument rarely satisfies a court that the person wanted that message to be their last word. Courts look at timing, revocation of earlier wills, and the completeness of the dispositions.

Why informal wills cause so much damage

Even where an application succeeds, the costs are heavy:

• Supreme Court proceedings that can run for months or years
• Family conflict, because someone always expected more
• Uncertainty for beneficiaries who cannot administer the estate meanwhile
• Legal costs paid from the estate itself, shrinking everyone’s share

And when the application fails, the estate passes under an earlier will or the intestacy rules - outcomes the deceased may never have wanted.

The safer path

A formal will under section 10 requires:

• Writing signed by the will-maker (or at their direction and in their presence)
• Signature made or acknowledged in the presence of two or more witnesses
• Attestation by two witnesses

That is it. Compared with litigation over whether a WhatsApp thread was meant to dispose of an entire estate, the cost of a professionally drafted will is trivial. If your circumstances changed recently - separation, a new partner, a child, a business - update the will rather than leaving notes.

If you hold superannuation, remember your death benefit is usually governed by your fund’s binding death benefit nomination, not your will - see our guide to super death benefit nominations .

If a loved one died without a formal will

Act quickly. Evidence supporting an informal will application - phones, computers, diaries, witnesses to statements - degrades and disappears. An application under section 18 should be lodged promptly, and anyone with potential claims needs to watch the family provision deadlines discussed in contesting a will time limits .

Unsure where you stand? Contact Bell & Senior Lawyers for a free initial chat about estates and wills - see also our wills and estates practice area .

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