Recently, the Queensland Court of Appeal made a decision concerning s 18Succession Act 1981 (s.18).[1]  This section concerns the courts power to dispense with the execution requirements of a will. 

In this instance, Nora Lindsay, the deceased, was survived by her two children, Geoffrey and Heather.  Geoffrey believed his mother died without a valid will and so applied for and was granted letters of administration on intestacy on 17 June 2013. 

Soon after the grant issued, Geoffrey located a five page hand–written document in a storage box containing items removed from his mother’s family home.  The document had been written and signed by the deceased but not witnessed.  It was found in an envelope which was marked “the envelope contains the will of”.   The document purported to gift the deceased’s house to Geoffrey but little else by way of testamentary gifts.

This document was brought to the court’s attention by way of a subsequent application for a grant of probate brought by Geoffrey.  


At first instance, the Judge found that whilst the handwritten document did contain a bequest of the deceased’s real property to Geoffrey, that statement in itself, in the context of the whole document, was insufficient to satisfy the requirements of s.18(2).   The Judge noted that the document was said to be “for the purpose of making the will” rather than the will itself.

Referring to the New South Wales Court of Appeal decision in Hatsatouris v Hatsatouris[2], the Judge was not satisfied that the test in s.18(2) had been fulfilled and dismissed the application.


Geoffrey appealed this decision.  The only element of s 18 in question before the primary Judge, and on appeal, was “the evidence sufficient to satisfy the Court that the deceased intended the handwritten document to form her last Will?

The nature of how the document was stored was relevant. It was not located in the deceased’s metal filing cabinet, where many of her personal documents like tax, medical and various receipts, were located.  The document was found with other personal items in an old beauty case with leather gloves, scarves, costume jewellery, colour slides of her travels, and some postcards.  It was agreed that the document stated the deceased’s testamentary intentions, however it was argued it is not enough that the document set out the deceased’s testamentary intentions.

The lack of evidence of the deceased having formed this general intention was pivotal to the outcome.  The evidence must establish that, on the balance of probabilities, the deceased did not want to make any further changes to that document.  The document in this case was insufficient to satisfy the requirements of s.18.  The evidence did not establish that that type of document embodied the settled testamentary intentions of the deceased.

At best, the evidence placed before the primary judge, established that the deceased intended that her son Geoffrey receive the benefit of her estate, with Heather to receive nothing.  Given the deceased had made a will in 1986 with the Public Trustee it would have been reasonable to assume that the deceased would have been aware of how a will should be properly executed.  Crucial to the failure of the appeal was the evidence did not establish, on the balance of probabilities, that the handwritten document, in that form and given the context of where it was stored, was intended by the deceased to form her last will.


Establishing testamentary intentions by reference to a will is very different to establishing settled testamentary intentions by reference to an informal document.  This case confirms that satisfying this element of s.18 is crucial to such an application.  It will not be sufficient to simply put a document containing testamentary wishes before a court without some evidence or basis for asserting that the deceased intended the document to operate as his/her will.