• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

What happened

This was an application under s 18 of the Succession Act 1981 (Qld) for a declaration that a handwritten, unsigned (in formal terms) document was the last will of Stephen James Edmondson and for a grant of letters of administration with that document attached. The document, dated 9 March 2012, is headed "The last will and testament of Stephen James Edmondson", uses dispositive language ("I leave all my property ..."), records precatory funeral wishes (including a wish that the body be used for medical science), and is signed by the deceased under his name in handwriting ([1]).

The applicant, Michael John Edmondson (the deceased's brother), supported the application with an affidavit ([8]) and family members, including the deceased's mother, Mrs Muriel Jean Edmondson, appeared and gave evidence. Mrs Edmondson told the Court that the night before the accident that killed her son he had said he had an appointment with the Public Trustee to formalise what he had written and that he had written down what he wanted in the will ([5]). The deceased died on 23 May 2012 ([3]). There was no dispute about testamentary capacity.

Dalton J applied the statutory test in s 18, invoking the three-stage approach described in Hatsatouris (as to which see [9]). Although the Court acknowledged the mother's evidence that the deceased had intended to take the handwritten note to the Public Trustee (which raised a potential difficulty for the third stage of the Hatsatouris test), the judge held that on the language, relative formality and substance of the handwritten document, and on the family testimony taken together, the deceased intended the document to be his will at the time he wrote it ([10]). The Court declared the handwritten document to be the deceased's will, granted letters of administration with that will attached to the applicant, and ordered the estate to pay costs on an indemnity basis (Orders, delivered 13 March 2013).

Why the court decided this way

Statutory framework and test

• s 18 of the Succession Act is the controlling statutory provision. It directly permits a court to declare a non‑formally executed document to be a will if satisfied the deceased intended that the document be his or her will. The judgment reproduces s 18 in full at [4], including the express permission in s 18(3) for the court to have regard to evidence about execution and statements of testamentary intention.

• The Court relied on the three-stage analytical formulation from Hatsatouris (a New South Wales Court of Appeal decision), as quoted at [9]: (a) was there a document, (b) did it purport to embody testamentary intentions, and (c) did the deceased demonstrate an intention that the document should, without more on his or her part, operate as the will. Dalton J treated that test as the appropriate guide for the s 18 inquiry.

How the facts were applied to the rule

• Elements (a) and (b) were straightforwardly satisfied. The document existed; it was headed as a will; it disposed of property on death; it contained funeral wishes and bore the deceased's signature ([1], [3], [10]).

• The critical question was element (c): whether the deceased intended the handwritten paper to operate as his will 'without more'. The judge acknowledged evidence the deceased planned to take the paper to the Public Trustee for formalisation ([5], [8]), and described that evidence as causing "some difficulty" with the third element ([10]). That is, on one view, the deceased's contemporaneous statement of intent to formalise might indicate that he did not want the handwritten note to be the operative will until the formal will was prepared.

• The Court resolved the difficulty by attributing decisive weight to the form and substance of the handwritten document itself together with the family statements. Dalton J observed that the document's language and relative formality, and the fact it dealt with dispositive matters and funeral directions, supported finding it was intended as a will at the time it was made. The mother's and brother's consistent accounts (one given orally at the bar table and one in affidavit) were also accepted as evidence and factored into this conclusion ([5], [6], [7], [8], [10]).

Procedural acceptance of oral statements

• The Court expressly recorded that the parties were content for Mrs Edmondson to speak from the bar table and the judge said he would "act upon them as though they were evidence" ([7]). That procedural agreement allowed the Court to treat the mother's oral account as admissible evidence in assessing s 18 intent.

Remedy and costs

• Because Dalton J was satisfied under s 18(2) that the handwritten document was intended to be the deceased's will, the Court made the declaration sought and granted administration with that will attached to the applicant brother. Costs were ordered to be paid by the estate on an indemnity basis (Orders).

Before and after state of the law

Before

• The governing legal framework was s 18 of the Succession Act 1981 (Qld), which permits courts to declare documents that are not executed under the formal will requirements to be wills if the deceased intended the document to be their will. In the broader Australian common law, courts have developed approaches (including the three-stage test from Hatsatouris) to assess intent and whether an informal writing should be treated as a will.

The decision's contribution

• The judgment applies the Hatsatouris three-stage approach in the Queensland context and demonstrates the Court will balance contemporaneous evidence that the deceased intended to formalise a handwritten note with the objective indicators supplied by the document's language, formality and content. Where the document itself strongly purports to be a testamentary instrument (title, dispositive language, signature), and where family evidence supports that disposition, the Court may find s 18 satisfied despite evidence the deceased planned to formalise the document later (see [10]).

After

• The decision stands as an instance where s 18 was satisfied notwithstanding evidence that the deceased intended to seek a formal will later. Practitioners should read the case as warning that planning to formalise a draft will does not necessarily prevent a court from declaring the draft itself to be the will; what matters is whether the deceased, at the time of making the document, intended it to operate as his or her will.

Key passages with plain-English translation

Quotation at [1]:

• Text: "The document is headed, 'The last will and testament of Stephen James Edmondson' ... It uses the language of disposition ... It is signed by Stephen James Edmondson ..."
• Plain English: The paper looks and reads like a will: it is titled as a will, talks about leaving property after death, and bears the deceased's signature. Those objective features strongly suggest testamentary intent.

Quotation at [4]:

• Text: Statutory reproduction of s 18 including that the court may consider evidence of execution and statements of testamentary intention.
• Plain English: The law allows a court to declare a non‑formal paper to be a will if the deceased meant it to be a will, and the court can look at other evidence (for example, what the deceased said) when deciding that question.

Quotation at [5]:

• Text: Mother's report that her son said he was going to the Public Trustee and had drafted what he wanted but wanted the Public Trustee to put it into legal terms.
• Plain English: The deceased told his mother he planned to have a formal will prepared by a professional; he thought his handwritten note might not be legally enough.

Quotation at [10]:

• Text: "I think having regard to the language and relative formality of that document ... the deceased did, at the time he made the handwritten document, intend it to be his will."
• Plain English: Despite the son's statements about getting a formal will, the judge found the paper itself and the supporting family evidence showed the son intended the paper to be his will when he wrote it.

Quotation at [7]:

• Text: "All parties were content that Mrs Edmondson tell me these things from the Bar table and I act upon them as though they were evidence."
• Plain English: The parties agreed the mother's spoken account at the hearing could be treated as evidence, and the judge accepted it.

What fact patterns trigger this precedent

This decision is engaged when:

• There is a handwritten or otherwise non‑formally executed document that on its face purports to be a will (title, dispositive language, signature, funeral directions), and the deceased dies before any formal will is executed.
• Family or other witnesses can attest that the deceased expressed consistent testamentary intention that matches the dispositions in the document.
• There is possibly conflicting evidence that the deceased planned to formalise the document later (for example by seeing the Public Trustee or a solicitor), creating a tension on whether the paper was intended to operate 'without more'.
• The Court must decide whether s 18(2) is satisfied; this judgment indicates that a document with clear objective indicia of testamentary intent and supportive witness accounts may be declared a will even where there was some plan to formalise the writing later.

How later courts have treated it

The judgment itself cites Hatsatouris and applies its three-stage structure ([9]). The decision is an application of established s 18 principles in Queensland: courts consider both the document's objective features and evidence of the deceased's statements and actions under s 18(3). The case illustrates willingness to declare a document a will where its content is dispositive and formal-looking, even if there is contemporaneous evidence of intent to have a formal will drawn up. Practitioners should review subsequent Queensland authorities for any finer distinctions about when plans to formalise defeat operation 'without more'. This judgment is a useful example for arguing that strong objective indicia plus supporting witness evidence can satisfy s 18.

Still-open questions

• The precise boundary between evidence that a deceased intended to 'formalise' a draft (which might point against the document operating as a will immediately) and evidence that the draft itself was intended to be the operative will remains fact-sensitive. This judgment shows one outcome where the Court favoured the document; it does not lay down a rigid rule about what kinds of statements about formalisation will prevent s 18 relief.

• The judgment accepted oral statements taken from the bar table as evidence because the parties consented ([7]). It leaves open whether a court would accord the same weight to similar oral statements if admissibility or contemporaneity were in dispute.

• Costs were ordered on an indemnity basis against the estate. The judgment provides limited explanation of that costs assessment. The principles governing indemnity costs in succession applications of this type are not explored in depth here.

• The judgment follows Hatsatouris' formulation. It does not, and need not, answer broader questions about the comparative weight to be given to objective document features versus contemporaneous statements in different factual mixes.

Final note: This analysis is grounded in the text of the judgment cited above. It explains the decision and its reasoning, identifies the statutory and precedent framework the Court used (s 18 and the Hatsatouris test), summarises the facts and orders, and highlights practical patterns and open questions that arise from the reasoning.

This is general legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis, get a qualified Australian lawyer to check it.