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[2018] QSC 306
plaintiff. The court declared that the video recording in the terms transcribed at paragraph [5] formed Jay Matthew Schwer's will within the meaning of s 18(2) of the Succession Act 1981 (Qld).
Jackson J held that Jay Schwer's video recording could count as a will under Queensland's informal-will provision. The recording was a document, set out what he wanted to happen to property if he died, and was intended to operate as his will while he remained alive to complete formal forms. The applicant also established that he had capacity when he recorded it. The court therefore declared that the recording formed his will.
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2,309 words · generated 28/09/2026
In Radford v White [2018] QSC 306, Jackson J considered whether a video recording made by Jay Matthew Schwer was his will under s 18(2) of the Succession Act 1981 (Qld). The application followed Mr Schwer's death without a will executed under Part 2 of the Act [1]-[3].
On 21 November 2016, Mr Schwer made the recording at the request of his de facto partner, Katrina Pauline Radford, before collecting a motorcycle. He said he was too lazy to make a formal will at that moment and would “fill out the damn forms later”. He nevertheless made detailed statements about what was to happen if anything happened to him [5]. In broad terms, he left everything to Ms Radford, with provision for money to be set aside for his daughter Aleena if she completed a qualifying degree before age 25. He identified superannuation funds and insurance policies, expressly excluded his estranged wife Nicole White, and made a further bequest of coins and an American Girl doll to Aleena [5], [14].
No linked legislation citations have been extracted yet.
Later that day, Mr Schwer suffered a significant head injury in a motorcycle accident. The court recorded that he had amnesia or memory loss relating to the accident day and following days, and that he did not later refer to, or appear to remember, the recording [4], [6]. He died on 24 January 2018 after an accidental overdose of prescribed painkillers following hospital discharge. The judgment records that no deliberate suicide was alleged [2].
Ms Radford applied for an order recognising the recording as a will. Ms White opposed the application on the basis that the court should not be satisfied that Mr Schwer intended the recording to form his will [8], [11]. The court granted declaratory relief, holding that the recording formed Mr Schwer's will within the meaning of s 18(2) [26].
The judgment organised the question around three factual conditions: there had to be a document; it had to purport to embody Mr Schwer's testamentary intentions; and he had to intend that it operate without more as his last will [24]. The court separately examined capacity.
First, the recording qualified as a document. Section 5 of the Succession Act referred to the definition in the Acts Interpretation Act 1954 (Qld), which includes material from which sounds, images, writings or messages can be produced or reproduced [12]. Jackson J noted that earlier decisions had treated a digital video disc and an audio recording as documents for s 18. Applying those decisions, he concluded that the computer file or the disc carrying the recording was a document [13].
Second, the recording purported to state testamentary intentions. The judge considered the context and content together. Mr Schwer said he was making a will because Ms Radford had asked him to do so before he rode the motorcycle. The recording identified the principal beneficiary, described conditional provision for Aleena, named particular superannuation funds and associated insurance, excluded Ms White, and made a specific bequest to Aleena [14]. The judge concluded that there was “no question” that the recording purported to state testamentary intentions [15].
Third, the judge had to decide whether Mr Schwer intended the recording itself to operate as a will, rather than merely record instructions for a future formal will. This was the contested issue. The statement about completing forms later could point towards the recording being preparatory only. But Jackson J considered that statement in the context of the whole recording. Mr Schwer had made it before a potentially risky motorcycle ride, said what should happen “if anything was to happen” to him, expressed the dispositions positively, and followed the reference to later forms with “but as sound mind and body” [16].
The judge explained that a document can record a person's intentions for a future will without itself being intended to operate as the will. That is why a draft formal will prepared for execution does not qualify merely because it records proposed dispositions [18]. But here, the judge found that Mr Schwer intended the recording to operate if he died, possibly in the near future. His plan to complete formal forms later did not displace an intention that the recording operate in the meantime [19]. The head injury and associated memory loss also explained why he did not subsequently complete the forms [19].
Capacity was a separate requirement. The judgment stated that the presumption of capacity applicable to a will executed under Part 2 did not apply to an informal will, so the applicant bore the onus of establishing capacity [20]. The evidence described Mr Schwer's intellectual functioning, military career, post-traumatic stress disorder, university studies, relationships and conduct. The judge found no sign of incapacity as at the recording date. Evidence concerning his state of mind and behaviour in the months before death was found either irrelevant to capacity on that earlier date or insufficient to displace the other evidence [20]-[23].
The judgment's account of the legal position before its decision is limited to the sources and propositions it discusses. Section 18(2) was the statutory route for recognising an informal document as a will where it had not been executed under Part 2 [12]. The statutory definition of “document” was broad enough to include material from which sounds or images could be produced or reproduced [12]. Jackson J referred to Mellino v Wnuk & Ors [2013] QSC 336 and Re Estate of Carrigan (deceased) [2018] QSC 206 as decisions treating, respectively, a digital video disc and an audio recording as documents for the statutory provision [13].
The judgment also recognised a distinction between an informal will and a document that merely records intentions for a future will. A draft prepared for later execution is not, by that fact alone, an informal will [18]. It referred to decisions concerning informal documents prepared as stop-gaps, including Yazbek v Yazbek [2012] NSWSC 594, Public Trustee v New South Wales Cancer Council - The Estate of Rita Lillian McBurney [2002] NSWSC 220, Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330 and Estate of Masters (1994) 33 NSWLR 446 [19].
The judgment's application of those ideas demonstrates that a stated intention to complete formal documents later is not conclusive of the status of an existing recording. The relevant question remains whether the deceased intended that recording to operate in the meantime. In this case, the answer depended on the recording's purpose, timing, language and circumstances, including the later head injury and memory loss [16]-[19].
On capacity, the judgment states that the presumption applicable to formal Part 2 wills does not extend to an informal will. The applicant had to establish capacity, and the court assessed the evidence at the date the recording was made [20]-[23]. The case therefore applies that burden to the evidence before it; it does not provide a general factual rule that any particular diagnosis or later behaviour will be decisive.
The judgment does not set out a later statutory amendment or a subsequent judicial treatment of Radford. On the material supplied, the “after” position that can be described is the result in this case: the recording was declared to form Mr Schwer's will because the court found each of the three s 18(2) conditions and capacity established [24], [26].
At [13], the court treated the computer recording or the medium containing it as a document. In plain English, the document concept was not confined to paper: the statutory definition and cited decisions covered a recording that could reproduce images or sound.
At [14], the judge identified the features showing testamentary content: the reason for making the recording, the dispositions to Ms Radford and Aleena, the treatment of superannuation and insurance, and the express exclusion of Ms White. At [15], Jackson J concluded that the recording plainly purported to state Mr Schwer's testamentary intentions. In plain English, its specific instructions and death-related context made it more than a casual discussion of future wishes.
At [18], the judgment draws an important boundary. A record of what someone wants included in a will is not necessarily itself a will. A draft formal will awaiting execution is the example given. In plain English, the question is not only what the document says, but also whether the deceased meant that document itself to have operative effect.
At [19], Jackson J found that the reference to filling out forms later did not defeat present intention. The judge considered the recording's timing and Mr Schwer's apparent concern about what might happen while riding the motorcycle. In plain English, intending to make a more formal document later can coexist with intending an informal document to cover the interval.
At [20]-[23], the court dealt with capacity as at the date of recording, rather than treating later evidence as automatically decisive. The applicant carried the burden because the recording had not been executed under Part 2. The judge found the evidence sufficient to establish capacity on the relevant date.
Finally, [24] states that the three conditions were “satisfied as a matter of fact, not discretion”. In plain English, the judge treated the statutory requirements as factual findings to be made on the evidence, rather than a discretionary choice to excuse non-compliance once those facts were established.
The decision is most directly relevant to a factual pattern involving an informal recording made by a person who has not executed a formal will, where the recording communicates dispositions intended to take effect on death. It is particularly pertinent where the recording is electronic or audiovisual, because the court addressed whether such a recording can qualify as a statutory “document” [12]-[13].
It also addresses a document that appears both to make present testamentary dispositions and to anticipate later formalisation. The case is useful for understanding why the phrase “I will complete the forms later” is not necessarily decisive. The court assessed whether the deceased intended the informal document to operate in the meantime, considering the purpose, wording and circumstances of the recording [16]-[19].
The case also involved a later event that plausibly explained why formalisation did not occur: Mr Schwer suffered a head injury and memory loss on the day of the recording [6], [19]. The judgment treated that fact as supporting its explanation of the delay, not as an independent statutory condition.
The decision does not establish that every video, audio recording or oral statement is a will. It required the court to find that the recording was a document, purported to embody testamentary intentions, and was intended to operate without more as a will. Capacity was considered separately, with the onus on the applicant [20], [24]. Nor does the judgment establish that a recording will qualify simply because it names beneficiaries or uses the word “will”: its reasoning depends on the evidence in the particular case.
The supplied judgment provides no information about decisions issued after 17 December 2018 that considered or applied Radford v White. It would therefore be unsupported, on this material alone, to describe how later courts have treated the case or whether they have followed, distinguished or limited it.
The judgment itself identifies the authorities it relied on or cited. For the document issue, Jackson J referred to Mellino v Wnuk & Ors and Re Estate of Carrigan as cases recognising recorded material as a document for s 18 [13]. For the distinction between a stop-gap document and an operative will, the judgment cited Yazbek, Public Trustee v New South Wales Cancer Council, Permanent Trustee Co Ltd v Milton and Estate of Masters [19]. For capacity, it cited Re Estate of Carrigan and Re Spencer (deceased) [20]. In stating that the three conditions were factual rather than discretionary, it cited Re Estate of Carrigan, Lindsay v McGrath and Hatsatouris & Ors v Hatsatouris [24].
Those references explain the authorities Jackson J placed in the reasoning. They do not establish subsequent treatment of Radford itself. The judgment also does not set out the reasoning of those cited decisions in detail, so their broader propositions should not be extended beyond the descriptions and uses stated in Radford.
The judgment resolves the application before it, but it leaves questions that cannot be answered from its text alone. One is how the intention test applies to recordings with materially different language or circumstances. Jackson J stressed context, including why and when Mr Schwer recorded the dispositions, but the judgment does not prescribe a checklist or a universal formula for deciding every case [16]-[19].
Another question is the evidentiary treatment of other kinds of electronic material. The court referred to decisions concerning a digital video disc and an audio recording, then applied the statutory definition to the file or medium in this case [12]-[13]. The judgment does not analyse other technologies or establish how every form of stored or transmitted content should be assessed.
Capacity is also necessarily fact-sensitive in the judgment. The court identifies the burden applicable to an informal will and assesses Mr Schwer's capacity on the evidence at the recording date [20]-[23]. It does not specify what evidence would be required in a different case or how particular medical evidence should be weighed.
Finally, Jackson J noted a possible procedural issue: the application might have been better framed to include proof of the recording as a will and appointment of an administrator. The judge nevertheless considered declaratory relief appropriate in the circumstances, with relevant parties represented or notified [25]-[26]. The judgment does not provide a general procedural guide for other estate applications.
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[1] JACKSON J: This is an application for an order that a video recording is a document that forms a will within the meaning of s 18(2) of the Succession Act 1981 (Qld) ("the Act").
[2] On 24 January 2018, Jay Matthew Schwer died as a result of a self-administered overdose of prescribed pain killers following his discharge from hospital after surgery. It is not suggested that he deliberately took his own life.
[3] On the date of his death, Mr Schwer did not have a will executed under Part 2 of the Act. He was then aged 39 and appears to have been a United States citizen, although he had lived in Queensland for approximately 12 or 13 years. It is not suggested that he had a will made in accordance with the laws of any other jurisdiction.
[4] On 21 November 2016, in the afternoon, Mr Schwer suffered injuries, including a significant head injury, in a motorcycle accident. He had purchased and started riding the motorcycle on that day.
[5] Relevant to this proceeding, earlier that day Mr Schwer made a video recording of his testamentary intentions at the request of his de facto partner. The recording comprised a file on his personal computer. A transcript of what he said is as follows:
"It's Monday the 21st November 2016. My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I'll just say it. Everything goes to Katrina Pauline Radford if anything was to happen to me.
If my daughter decides to go to school, on completion of a four year degree, in something other than the Arts - so any business, psychology, sociology degree, that's fine - Katrina will have $30,000 put/set aside in a savings account. That will be given to Aleena Schwer as of completion of college, as long as it's before the age of 25. If she doesn't graduate by the age of 25 from a university with a four year degree, that money will be absolved (sic) back to Katrina Radford. This money that will be accumulated is to be used for one thing only, and that is to put a deposit on a house in Aleena's own name.
Other than that, all money, all super funds, all three - that would be Q Super, Sunsuper and Colonial Super - and any insurance policies attained with those will all go to Katrina Pauline Radford.
Nothing, I repeat, nothing, will go to my soon to be ex-wife Nicole White/Schwer.
Other than that, no I don't really plan on dying, but if I do it's by accident, and yeah, I'll fill out the damn forms later. But as sound mind and body, everything goes to Kat. Not one thing will go to Nicole Schwer. The only thing that will be given to Nicole on - I take that back - nothing will be given to Nicole. Katrina should be allowed to maintain contact with Aleena on my behalf so she could find out who I really was as a person.
On Aleena's 16th birthday, Kat will give all coinage and American girl doll to Aleena. All the coinage is just, mainly, old coins mainly her birth year, silver coins and stuff like that. But I would like Katrina to have an impact, in, in as a mentor, per se in Aleena's life, if anything should happen to me and I would like Nicole White to respect that. I've never really done one of these so it's kind of weird.
Other than that, everything's good. ... I don't plan on dying today, hopefully"[1]
[6] As a result of the head injury suffered in the motorcycle accident later that day, it is not disputed that Mr Schwer suffered amnesia or memory loss in relation to that day and the succeeding days. It is not suggested that he later referred to or otherwise showed that he remembered the video recording.
[7] From mid-2014, until of the date of Mr Schwer's death, the applicant became his girlfriend, then his de facto partner, and also the mother of their daughter, Taylor, who was born in December 2017.
[8] The applicant applies for orders that the video recording is a document that forms a will of Mr Schwer within the meaning of s 18(2) of the Act because it purports to state the testamentary intentions of Mr Schwer and submits that the court should be satisfied that Mr Schwer intended the video recording to form his will.
[9] The respondent was Mr Schwer's estranged wife, as at the date of his death. The respondent and Mr Schwer were married on 11 May 2007. On 8 May 2010, their daughter Aleena was born.
[10] They separated in 2014. On 15 April 2015, the Family Court of Australia made consent orders, by way of property settlement, under which the respondent was to pay Mr Schwer the sum of $5,000 and he was to transfer all his interest in the former matrimonial home situated at 3 Merton Drive, Upper Coomera to the respondent. Paragraph 7 of the order provided for their entitlements otherwise, apparently by way of final property settlement.
[11] The respondent opposes the orders sought by the applicant on the ground that the court should not be satisfied that Mr Schwer intended the video recording to form his will.
[12] Only a document that has not been executed under Part 2 of the Act can form a will for the purposes of s 18(2). "Document" is defined in s 5 of the Act by reference to the Acts Interpretation Act 1954 (Qld), which includes, as paragraph (c) of the definition of "document" in Schedule 1:
"any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device)."
Did the video recording purport to state the testamentary intentions of Mr Schwer?
[14] The transcript of the video recording demonstrates that it purports to state Mr Schwer's testamentary intentions. First, he states that the reason for the recording is that his girlfriend asked him to do a will before he picked up his motorcycle that day. As well, he explains that he will say it on the video recording and fill out "the damn forms" later. Third, he uses the words "but as sound mind and body", indicating perhaps a United States citizen's appreciation of a legal formality relating to wills. Fourth, most importantly, the dispositions that he intends are clear, including that "everything goes to" the applicant with her to make provision for $30,000 to be put aside for Aleena for the stated purposes. He also specifically refers to his interests in superannuation funds, identifying three funds and any insurance policies "attained with" those funds, again to "go to" the applicant. Fifth, he makes it explicit that he wishes that "nothing will be given" to the respondent. Last, he provides for a bequest of his coinage and American girl doll to Aleena.
[15] In my view, there is no question that the video recording purports to state Mr Schwer's testamentary intentions.
Did Mr Schwer intend that the video recording should without more operate as his will?
[16] Some of the matters discussed under the previous heading suggest that Mr Schwer intended that the video recording would operate without more as his will. First, the context in which the recording was made was to do a will before he picked up the motorcycle that day. Second, the language he chose to express his intentions was positive and not conditional in any way that would affect it coming into operation. Third, Mr Schwer specifically said that the video recording was made and those dispositions said by him were made "if anything was to happen to" him. Lastly, he also specifically stated that he did not really plan on dying and that he intended to "fill out the damn forms later", but then continued with the words "but as sound mind and body", as formal language apparently intended to convey that this was his testamentary instrument in the meantime.
[17] The starting point is that a will made under Part 2 of the Act is not made so as operate from some future nominated date or some future nominated event other than death. It is an instrument that disposes of property, in the event of death, that operates upon death unless revoked sooner.
[18] When the question is whether an informal statement of testamentary intention is intended to operate as a will, other considerations may intrude. For example, the document may be a note or record of a person's testamentary intentions, in the sense that it records what they then intend will be put in a will to be made, but the document itself is not intended to operate as the will. That is why draft formal wills prepared for a person to execute do not qualify as an informal will.
[19] A number of cases have considered whether an informal document, prepared as a stop gap, can operate as a will.[4] In the present case, in my view, there is no significant difficulty. First, at the time of making the video recording, Mr Schwer clearly intended that it was to operate in the event of his death, possibly in the near future from riding his motorcycle. Second, that he stated that he intended to "fill out the damn forms" at some time in the future did not displace his intention that the video recording was to operate as his will in the meantime. Third, the delay in Mr Schwer attending to "fill out the damn forms" subsequently is readily explained by his head injury suffered in the motorcycle accident and associated loss of memory of the day on which he made the video recording.
[20] The presumption of capacity of a testator to make a will that operates where a will is executed in accordance with Part 2 of the Act, does not apply to an informal will.[5] Accordingly, the applicant bears the onus of establishing Mr Schwer's capacity. The evidence dealt with his mental health and capacity in some detail. An affidavit by Mr Schwer's mother demonstrated that from childhood he functioned at a high intellectual level. He had a career in the United States armed forces as a young man. He was honourably discharged on medical grounds. Following discharge, he suffered or continued to suffer from post-traumatic stress disorder. The breakdown of his marriage to the respondent may have been related to that. However, from mid-2014 he formed a relationship with the applicant that appears to have been a strong and positive relationship.
[21] With the financial support to which he was entitled as a war veteran, he enrolled in university and was undertaking a degree course in social work.
[22] Up to 21 November 2016, his habits, relationship with the applicant, earlier family life and even earlier years, as set out in the affidavits and exhibits, show no signs of any lack of capacity. On the evidence, no question about Mr Schwer's capacity as at the date of the video recording emerges, in my view.
[23] The respondent adduced some evidence about Mr Schwer's state of mind and behaviour in the months before his death. Two observations may be made about that evidence. First, it is not relevant to his capacity as at the date of making the video recording. Second, even if it were relevant, it does not displace the evidence otherwise that proves his capacity.
[24] The applicant has established that the three factual conditions for the conclusion that the video recording forms a will within the meaning of s 18(2) are satisfied. First, there was a document within the meaning of the section. Second, the document purports to embody the testamentary intentions of Mr Schwer. Third, Mr Schwer demonstrated that it was his then intention that the document without more operation as his last will. These conditions have been satisfied as a matter of fact, not discretion.[6]
[25] The present proceeding is constituted as an application for orders as to those conclusions but must be, in effect, for declaratory relief. It might have been better had the application included a claim for relief for proof of the video recording as Mr Schwer's will and for the appointment of an administrator to the estate. However, the appropriate parties are represented. The respondent, as the wife of Mr Schwer and as the mother of their infant daughter was an appropriate party. The applicant, as Mr Schwer's de facto partner and the mother of their daughter, was an appropriate applying party. And Mr Schwer's mother swore an affidavit for use in the proceeding and accordingly had notice of the proceeding.
[26] In the circumstances, in my view, it is appropriate to declare that the video recording in the terms transcribed in paragraph [5] of this judgment forms the will of Mr Schwer within the meaning of s 18(2) of the Succession Act 1981 (Qld).
[1] "Ums" and "ahs" are omitted from the transcript of the audio recording. As to the need for a transcription see Re Estate of Wai Fun Chan [2015] NSWSC 1107, [25]-[27].
[2] Mellino v Wnuk & Ors [2013] QSC 336.
[3] Re Estate of Carrigan (deceased) [2018] QSC 206.
[4] Yazbek v Yazbek [2012] NSWSC 594, [104]-[105]; Public Trustee v New South Wales Cancer Council - The Estate of Rita Lillian McBurney [2002] NSWSC 220, [49]; Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330, 335; Estate of Masters (1994) 33 NSWLR 446, 469.
[5] Re Estate of Carrigan (deceased) [2018] QSC 206, [17]; Re Spencer (deceased) [2014] QSC 276; [2015] 2 Qd R 435.
[6] Re Estate of Carrigan (deceased) [2018] QSC 206, [16]; Lindsay v McGrath [2016] 2 Qd R 160, 177 [16], 185 [57] and 187 [63]; Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408, [56].
Radford
White [2018] QSC 306
(1995) 39 NSWLR 330
(1994) 33 NSWLR 446
The court declared that the video recording in the terms transcribed at paragraph [5] formed Jay Matthew Schwer's will within the meaning of s 18(2) of the Succession Act 1981 (Qld).