Don’t laugh! This very question was raised in the recent case of Lewis v Watson [2025] QSC 35. A formal will in NSW has the following requirements:
* Testamentary intention i.e. the writer of the will (testator) intended the document to be their will.
* Testamentary capacity i.e. the testator must be of sound mind when making the will.
* The will must be in writing and signed by the testator in the presence of two witnesses who also sign it at the same time.
However, under section 8 of the Succession Act a court can dispense with the formal requirements of a will provided there is a document which purports to state a deceased person’s testamentary intentions without complying with formal will requirements and the deceased intended the document to constitute their will.
In the above Queensland case the court had to consider a love letter by a man to a woman and whether it could be regarded an informal will and therefore overrode a previous valid will. The court made determinations about its contents including:
(a) “…to accumulate as much wealth as I can to one day give to you and your son” which the court decided did not demonstrate an intention to dispose of property;
(b) “If I were to die tomorrow then you and your little boy would inherit almost half a million dollars” which the court said could suggest that the deceased had already made a will in favour of
the woman and her son (not that there was a disposal of property by virtue of the letter); and
(c) “But I want you to have it…So please just accept it” which the court considered was merely the deceased imploring the woman to accept a gift he wished to make (not an expression of a
testamentary intention).
In conclusion, the court decided that the document could not be regarded as an informal will as it had no testamentary intent, no language which disposed of property, its character resembled more a love letter than a legal instrument and its references to wealth were aspirational rather than binding declarations
Despite the above case, it would be wise to exercise caution when sending an emotionally charged written communication to a love interest which mentions transferring of wealth or property to that person because, at the very least, it might invite a legal action long after you are gone which may come back to haunt your relatives!
June 2025