Wills and Estates
One of the most important things that a person can do for their family during their lifetime is to plan for the disposition of their estate through the creation of a will. If someone dies without a will the consequences for their family are inconvenience, stress, and unnecessary expense. A will is a legal document. It outlines an individual’s wishes for the distribution of their estate after their death and names a trusted person to act as executor of their estate. The area of law related to wills and estates in Queensland is known as succession law and is governed by the Succession Act 1981.
Wills and Estates in Queensland
In Queensland, estates include both the assets and debts of a deceased. It is essential that a will account for all assets in the deceased’s estate. Company or trust-held assets, and property owned in joint tenancy with someone else, do not form part of an estate in Queensland and therefore are not disposed of in a will.
A will is fundamentally the same in every Australian state and territory, although there are specific laws relating to wills and estates in Queensland that do differ slightly from other jurisdictions. Broadly, a will covers the distribution of any assets in the estate of the deceased, including real property, cars, investments, stocks and shares, heirlooms (such as jewellery), furniture, and household pets. The testator (the person making the will) must take care when listing these items that they are easily identifiable (for instance, if a testator has a valuable necklace, this should be listed with a full description of the gemstones and materials).
A will should also nominate at least one person to act as executor of the estate. An executor is entrusted to carry out the last wishes of the deceased in relation to the distribution of their estate, including through the establishment of trusts. It is also common for people to use a will to list other instructions, such as for the guardianship of minor children, specific funeral arrangements, and the deceased’s wishes in relation to organ donation. It is important to know that a will in Queensland is only binding in relation to the disposal of an estate, and any other instructions in a will are merely an expression of the wishes of the deceased.
Impact of Marriage and Divorce on a Will
In Queensland, the marriage of a testator automatically revokes an existing will, unless the will was made in contemplation of marriage. Divorce also effectively revokes any provision for a former spouse in a pre-existing will, unless the will has explicit instructions to the contrary. The only provision that survives divorce is the appointment of a former spouse as a trustee of property held in trust for the testator’s children.
Who Should Make a Will?
In Queensland, anyone of sound mind over the age of eighteen can – and indeed should – make a will accounting for the assets of their estate. A person who dies without a will is described as being intestate, and it can be very difficult, time-consuming and expensive to administrate an intestate estate. Even if a person does not have any significant assets, they should still make a will, as this should lessen the burden on their family after their death.
Who Cannot Make a Will?
A person cannot make a will if they are unable to understand the implications. A solicitor drafting a will must be satisfied that the testator has full comprehension of their actions. A testator must also make a will of their own volition without undue pressure from anyone else.
A person under the age of eighteen can only make a will if they are married, or are in contemplation of marriage. The Supreme Court can authorise the creation or alteration of a will for a minor if they are satisfied that it is reasonable in the circumstances and that the minor comprehends the consequences.
What is an Informal Will?
In Queensland, wills and estate law requires a will to conform to specific legal formalities to be valid. It is highly recommended that everyone consult a solicitor or other qualified practitioner before drafting a will, but there are some simple rules to remember. The most straightforward of the formalities is that it should be in writing (either typed or handwritten), and signed by the testator at the conclusion of the document and initialled on every page. This signature needs to be in the presence of two witnesses, who must also sign the will, in the presence of the testator and each other. The witnesses cannot be a beneficiary of the will or a spouse of the testator.
If the will is not validly drawn, then it will often be described as informal. The estate may consequently be found to be intestate, or face expensive challenges in court. The courts are able to validate any document (including an informal document) as a will if it satisfied that the testator had clear intent to make a binding testament. However, validating an informal will can be a long and difficult process.
How is a Will Amended?
A will cannot be validly altered by erasure, crossing out, writing between the lines or adding new clauses unless the changes are properly executed in the presence of two witnesses. Where alterations are desired in an already existing will, it is far preferable for the will to be completely rewritten and properly executed.
Who Keeps a Will?
A solicitor or the Public Trustee will keep a copy of a will that they draft on file. The testator should also keep a copy safe in a secure location, preferably a location that is unlikely to be damaged by fire or another disaster. The testator should always inform someone of the location of the will. An executor is a sensible person to inform of the whereabouts of the will, as they will need to access it immediately after the death of the testator.
Our Queensland Wills and Estate team can help you draft a will that accounts for all your wishes for your estate. If you would like more information about wills and estates in Queensland, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.