Oral Wills and Informal Wills in Queensland: Are Spoken Last Wishes Valid?

Disclaimer – This article is for general educational purposes only and is not legal advice. Succession law in Queensland can change, and each estate is unique. If you need to defend, rely on, or challenge a last-minute or informal will, obtain tailored guidance from a Queensland solicitor experienced in probate disputes.

A dying person’s final words can carry powerful moral weight, but Queensland courts decide succession by statute, not sentiment. The Succession Act 1981 (Qld) demands that a will be “a document”—normally written and signed—before it can pass probate.
This article explains:

• Why purely oral wills (nuncupative wills) are not recognised in Queensland
• How the court may still admit informal electronic documents under the Act’s dispensing power
• The evidence needed to uphold (or defeat) a last-minute video, text, or phone-note will
• Practical steps for testators, executors and would-be challengers.

1. Statutory Baseline: A Will Must Be a “Document”

1.1 Formal Requirements – Succession Act 1981 s 10

A valid Queensland will normally:

1. Is in writing (pen, type, or electronic print-out).
2. Signed by the testator (or someone at their direction).
3. Witnessed by two people present at the same time.

1.2 Why Spoken Wishes Fail

An oral statement alone is not a “document”; it therefore cannot satisfy s 10.
Queensland abolished traditional seafarers’ or death-bed nuncupative wills long ago. Unless words are captured in some enduring form, they carry no legal testamentary force.

2. The Dispensing Power – s 18 Informal Wills

Although oral wills fail at the first hurdle, section 18 allows the Supreme Court to admit a “document” that doesn’t comply with s 10 if the judge is satisfied it was intended to operate as the deceased’s will.

Key limit: The court cannot waive the “document” requirement. There must be something recorded—a text, video, email, phone note, PDF, etc. Spoken words floating in the air remain unenforceable.

2.1 Notable Queensland Cases

None of these cases involved pure oral expression; each left a digital footprint.

3. Comparing Validity: Pure Oral vs Informal Electronic Wills

4. Common Grounds to Challenge an Informal Will

1. Intention not proven – Was the text or video just notes or a draft?
2. Capacity & volition – Same Banks v Goodfellow test applies; hospital drugs, delirium, or coercion may void the will.
3. Document tampering – Metadata manipulated; multiple drafts; question of authenticity.
4. Superseding formal will – A later properly executed instrument overrides the informal one.

5. How Executors Should Handle Alleged Oral Wishes

1. Search for documents – Phones, laptops, cloud drives, USBs, hospital bedside papers.
2. Secure devices immediately – Preserve metadata; avoid altering timestamps.
3. Interview witnesses – Doctors, nurses, relatives who heard the statements; note times and exact words.
4. Seek legal advice fast – Decide whether to propound an informal will or proceed on the last formal will/intestacy.

6. Practical Drafting Tips for Last-Minute Wills

• Write something—even handwritten short form (“This is my will…”) is better than speaking only.
• Date and sign; if possible, get two witnesses in the room.
• Record a short video of reading the document aloud; keep it on the same device.
• State revocation of prior wills to avoid ambiguity.
• Email or text the document to your lawyer or trusted friend to create a verifiable timestamp.

7. Frequently Asked Questions

Q 1 – My father dictated his wishes to me at the hospital but died before signing. Are they binding?
No. Unless the words were recorded as a document (e.g., you typed and he confirmed on screen), they are not a valid will. You may consider a family arrangement, but legally the estate follows the last formal or informal document recognised by the court.

Q 2 – Does a voice memo count as a “document”?
Yes, many judges treat a digital audio or video file as a “document” for s 18, provided metadata shows it was created by the deceased and clearly expresses testamentary intention.

Q 3 – Can I witness a phone-note will if I’m a beneficiary?
Witness requirements under s 10 don’t apply to informal wills admitted via s 18, but beneficiary involvement heightens scrutiny for undue influence. Independent witnesses remain best practice.

Q 4 – How much does it cost to prove an informal will?
Expect higher legal fees: obtaining forensic IT reports, medical opinions and affidavits. Contested informal-will hearings can exceed $15 000 in costs.

Q 5 – If an informal will is admitted, does it override all earlier formal wills?
Yes—assuming the court is satisfied it was intended as the final testament, it revokes inconsistent prior wills to the extent of any conflict.

Key Takeaways

• Spoken wishes alone are not valid wills in Queensland. A “document” is mandatory.
• Section 18 lets the court dispense with signature/witness rules only if there is a tangible record (text, video, photo, etc.) and clear testamentary intent.
• Death-bed electronic wills succeed when supported by strong metadata, medical evidence and convincing narrative; otherwise, they fail.
• Executors must secure devices and evidence promptly; challengers focus on intention, capacity and authenticity.

Sources / Citations

1. Banks v Goodfellow (1870) LR 5 QB 549 – capacity test.
2. Succession Act 1981 (Qld) ss 10 (formal execution), 18 (dispensing power).
3. Re Yu [2013] QSC 322 – iPhone Notes will admitted.
4. Re Nichol; Nichol v Nichol [2017] QSC 220 – unsent SMS will admitted.
5. Re Jerrard [2021] QSC 232 – laptop video will admitted.
6. Uniform Civil Procedure Rules 1999 (Qld) rr 598–603 – probate caveats and procedure.