A flurry of judgments from the Supreme Court of Queensland lay bare the common pitfalls of drafting a Will without an experienced solicitor, writes Attwood Marshall Lawyers Wills and Estates Senior Associate Zoe Booth.
Justice Hindman of the Supreme Court of Queensland recently handed down several rulings on defective Wills – some with drafting flaws such as missing signatures or an incomplete date, others where the original was lost.
The decisions highlight common mistakes individuals can make when they do not engage an experienced solicitor for estate planning or when they fail to store their Will properly, even after it has been professionally prepared.
The cases were all dealt with “on papers” without an oral hearing, and the rulings were handed down between 12 and 18 November 2025.
Despite their irregularities, the judge granted probate to each Will. However, these rulings serve as a reminder that even when courts ultimately accept defective Wills (or copies when the original is missing), the process can create unnecessary delays and legal expenses for grieving families who do not need the added stress.
The court applications could have been avoided, and probate granted far more quickly, had the will-makers engaged experienced solicitors to ensure their Wills were executed correctly and stored safely from the start.
Understanding what makes a Will legally valid
Under the Succession Act 1981, a properly executed Will must be in writing, signed by the testator and witnessed by two individuals who are present at the same time and who also sign the document on every page. The Will should be dated and clearly express how the testator wants their estate distributed after death.
When any of these elements are missing or defective, the document becomes an “informal Will.”
Having an informal Will does not make it worthless (as these five cases show), but it does require extra steps to have it recognised by the court.
The five cases and their defects
In the Estate of John Colin Lindenberg [2025] QSC 298 – only one witness
Mr Lindenberg, an elderly man with no children, was hospitalised after a serious car accident. While there, he decided to put his wishes into writing.
But the resultant document was witnessed by only one person instead of the required two.
Despite being physically unwell, medical evidence confirmed Mr Lindenberg had the mental capacity to understand what he was doing. Justice Hindman also considered corroborative evidence from family members who confirmed that the written wishes were consistent with how he had expressed his wishes orally in the past. The Will was upheld.
In the Estate of Evelyn Margaret Berenger [2025] QSC 303 – no witness signatures
Ms Berenger’s Will dated back to February 1970, more than 50 years before her death. While the Will appeared professionally drafted, the named witnesses never added their signatures, rendering it invalid.
One key consideration was how Ms Berenger treated the document throughout her life. She had kept it with her important documents and regularly referred to it as her Will with family members.
The court found that, despite the missing witness signatures, the document clearly stated her testamentary intentions, and she intended it to have legal effect after she died.
In the Estate of Annette Pampling [2025] QSC 312 – incomplete date
Unlike the previous cases, this Will was executed with the proper formalities – Ms Pampling had signed it, and two witnesses attested to the signing. She had engaged a solicitor’s firm to prepare the Will and had stored it with the solicitors.
However, it contained a pre-printed date field that specified only “2022,” without the month and day.
But the judge called the incomplete date a “minor” irregularity and found that Queensland’s Succession Act 1981 doesn’t actually require a Will to bear a complete date to be valid. Her estate was straightforward, with no competing documents or concerns about her mental capacity. There was also sufficient evidence that the document was testamentary, and that Ms Pampling intended it to operate as her Will.
In the Estate of Phyllis Edith Thomas [2025] 308 – original document missing
Ms Thomas had also engaged a solicitor to prepare her Will, and it had been properly executed in August 1972. She also made an amendment (or codicil) to it in March 2023, just months before her death.
However, her family had to go to court because they could not find the original Will; only a copy remained.
When an original Will is lost, the law presumes the testator intentionally destroyed it. In this case, the solicitor who prepared the 2023 codicil recalled seeing and making a copy of the original Will during that appointment but had not been tasked with keeping the original document secure.
Ms Thomas’s family had to prove five things: that the original Will existed, that it was properly executed, what its terms were, that proper searches had been conducted, and that the presumption of intentional destruction could be rebutted.
The fact that she had amended her Will in 2023, in particular, helped to convince the court that the original was accidentally lost, not intentionally destroyed.
In the estate of John McLean Stuart [2025] QSC 293 – original document missing
Like Ms Thomas’s case, Mr Stuart had properly executed his Will with all the required formalities. He signed it on 20 February 2017 in the presence of two witnesses.
The Will was last known to be in Mr Stuart’s office, and the family believed a lawyer had taken it for safekeeping in January 2019 during another legal matter. However, by the time of his death, neither the lawyer nor the family could locate the original.
The family conducted extensive searches and confirmed Mr Stuart had not consulted with any other legal practitioners. What helped overcome the presumption that he had intentionally destroyed the Will was his established pattern of consulting lawyers for important legal matters. The court decided that if he had wanted to revoke his Will, he would have followed his usual practice of seeking legal advice to do so properly.
Justice Hindman admitted the copy to probate, though once again, a simple storage issue created significant complications in estate administration.
When courts will accept informal Wills
Section 18 of the Succession Act gives courts the discretion to accept documents that do not meet formal requirements.
In these applications, the court must evaluate three critical questions:
- Does a document actually exist?
- Does it express the deceased’s intentions about what should happen to their property after death, and
- Did the deceased intend for this specific document to operate as their Will?
These aren’t easy hurdles to clear. Courts will only accept informal Wills in limited circumstances, and you will need strong evidence to prove your case.
One pattern emerges clearly across all five judgments: the importance of corroborative evidence from family members and others who knew the deceased.
When an estate is uncontested and family members agree, these applications can proceed relatively smoothly (though still with delay and expense).
However, if even one family member challenges the informal Will, what begins as a straightforward probate application can escalate into protracted and costly litigation.
The investment in professional estate planning is minimal compared to the costs your family may face if your Will is defective or lost. More importantly, you will have peace of mind knowing your wishes will be carried out as intended, without delay or dispute.
Attwood Marshall Lawyers – experts in estate planning
Do not leave your loved ones to navigate court applications and legal uncertainty during an already difficult time.
Engaging an experienced estate planning solicitor ensures your Will is properly drafted, validly executed, and securely stored.
Attwood Marshall Lawyers specialises in estate planning and administration, helping clients preserve their wishes for the future.
The firm stores its clients’ Wills and other important legal documents in a custom-made fireproof strongroom, a free service offered to all clients. We have measures in place to ensure these documents remain safe and secure.
For all your estate planning needs, please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime.
