Death-Bed Wills in Queensland: Legal Validity and Challenges

Disclaimer – This article is for general educational purposes only and does not constitute legal advice. Death-bed wills raise complex evidentiary and procedural issues under Queensland succession law. Executors, beneficiaries or family members who believe a last-minute will is invalid—or wish to defend one—should seek prompt advice from a qualified Queensland solicitor.

A death-bed will is any will made when the testator is gravely ill, hospitalised or facing imminent death. Queensland courts will admit a valid death-bed will if it meets statutory requirements, but such documents are frequently attacked on grounds of capacity, undue influence or defective execution. This guide explains how the Succession Act 1981 (Qld) and case-law treat death-bed wills, the evidence needed to uphold or contest them, and practical steps for drafting or defending a last-minute testament.

1. Are Death-Bed Wills Automatically Invalid?

No. Queensland law does not invalidate a will simply because it was signed hours—or minutes—before death. The same four pillars apply to every will:

1. Testamentary capacity (Banks v Goodfellow 1870) [1]
2. Knowledge and approval of the contents
3. Freedom from undue influence
4. Proper execution (two witnesses, present together) [2]

If any pillar is shaky, a challenger can lodge a caveat and the court will scrutinise the circumstances more closely than for a routine will.

2. Red-Flag Indicators with Death-Bed Wills

3. Legal Grounds Most Often Raised

3.1 Lack of Testamentary Capacity

Evidence required: contemporaneous medical notes, doctor’s affidavit, solicitor file notes showing the testator answered “capacity” questions.

3.2 Undue Influence or Coercion

Courts look for dependency, isolation, secrecy and who benefited. Direct proof is rare; strong circumstantial evidence can shift the evidential burden [3].

3.3 Execution Defects

Succession Act s 10 demands two witnesses present at the same time. ICU signatures on different pages, or nurses signing later, invite requisitions. Under s 18 the court can dispense with formalities if satisfied the document was intended to operate as a will, but proof must be compelling.

3.4 Informal “Electronic” Wills

A typed note on a phone or tablet, or a video statement, may be admitted under s 18 if intention is clear. The evidential hurdle is high, especially when the maker dies within hours.

4. Comparing Death-Bed and Standard Wills

5. Evidentiary Toolkit for Defending a Death-Bed Will

• Doctor’s capacity certificate dated the same day
• Detailed solicitor file notes: questions asked, answers given, mental state observations
• Audio or video of instructions and signing (with consent)
• Affidavit from each witness describing execution sequence and absence of pressure
• Previous wills to explain changes (or reasons noted by solicitor)

6. Case Study – Hospital-Room Will Upheld

Facts
Mrs Andrews (age 82) signed a one-page handwritten will in a Brisbane private hospital 12 hours before death from pneumonia. She left her house to a long-time carer, excluding two adult children.

Evidence
• Treating GP recorded GCS 15 and “alert, oriented” at 9 a.m.
• Solicitor attended, asked capacity checklist; notes tendered.
• Two independent nurses witnessed simultaneously.
• Video clip (30 sec) showed Mrs Andrews reading the bequest aloud.

Challenge
Children alleged undue influence and incapacity.

Outcome
Court found testamentary capacity proven, no undue influence, execution valid. Probate granted. Children ordered to pay their own costs.

7. Practical Tips for Lawyers Drafting Death-Bed Wills

• Confirm identity and prior wills.
• Obtain doctor’s opinion immediately before instructions.
• Keep all non-beneficiaries present during discussions (or exclude all beneficiaries).
• Use clear, short clauses; avoid complicated trusts.
• Ensure two qualified, disinterested witnesses sign in sequence.
• Prepare contemporaneous affidavit of file notes.

8. Executor Checklist if a Death-Bed Will Is Found

1. Secure the original; note storage location.
2. Obtain the last treating doctor’s notes and contact details.
3. Ask drafting solicitor for file, capacity notes and witness particulars.
4. Expect a caveat—factor extra 3-9 months into timeline.
5. Do not distribute before family-provision limitation dates expire.

9. Frequently Asked Questions

Does a death-bed will automatically revoke earlier wills?
Yes, if valid. The newest will prevails unless the court rules it invalid.

Can a video statement alone be admitted as a will?
Possibly under s 18, but courts require strong evidence it reflects final testamentary intention.

What if only one nurse witnessed?
The court may still admit under s 18, but risks and costs rise sharply.

Is a bedridden testator allowed to direct someone else to sign?
Yes, the Succession Act permits signature “at the direction of” the testator in their presence with two witnesses. Evidence of the direction is essential.

Key Takeaways

• Death-bed wills are not automatically invalid, but they attract close judicial scrutiny.
• Capacity, undue influence and execution errors are the main battlegrounds.
• Detailed medical and solicitor evidence is crucial to upholding a last-minute testament.
• Executors should brace for caveats and secure all contemporaneous records.
• Early, well-documented professional involvement remains the best defence against future challenges.

Sources / Citations

1. Banks v Goodfellow (1870) LR 5 QB 549 – capacity test.
2. Succession Act 1981 (Qld) ss 10, 18 – formal execution and dispensing power.
3. Nicholson v Knaggs (2009) 76 ATR 10 – undue influence burden.
4. Uniform Civil Procedure Rules 1999 (Qld) rr 598-603 – caveats and probate procedure.
5. Supreme Court of Queensland Probate Practice Direction 18/2024 – registry requisition policy.