Making A Will (Qld)
A will is a legal document that contains a person’s directions for their estate when they die. In Queensland, wills are governed by the Succession Act 1981.
In the document, a person can leave instructions for any property to which they are entitled at the time of their death. It can also contain instructions about, for example, the care of children or pets, funeral arrangements, and donations to charity.
To be legal in Queensland, a will must be:
- in writing;
- signed by the person making it (the “testator”);
- signed by the testator in the presence of 2 witnesses aged over 18, present at the same time.
- signed and attested to by the witnesses in the presence of the testator.
It should also be dated. If there is no date listed, the witnesses may have to swear an affidavit as to the date it was signed. The date is important to prove the will is the testator’s last one.
The witnesses must be aged at least 18 and not be a family member of the testator. They also cannot be a beneficiary or know someone who may benefit from the will.
A will made by a person aged under 18 (a “minor”) is not valid unless there are specific circumstances, such as when it is made in contemplation of marriage, or the minor is married.
The will takes effect as if it had been executed immediately before the testator’s death. If the testator has disposed of some of the property for which instructions have been left, any remaining property can be distributed.
The testator nominates an executor to be responsible for carrying out the testator’s wishes, mainly distributing assets to beneficiaries after all debts and taxes are paid.
A will should be kept in a safe place. A solicitor, the Public Trustee and private trustee companies will usually store it at no charge. A relative or close friend should be told where the document is stored so it can be located easily upon the testator’s death.
If the will is not signed correctly (if the document has not been witnessed properly, for instance), the document will not be recognised as a will. This means it will be difficult for the executor to be recognised as an authorised person, and so, to pay debts, and access and distribute assets. The executor may need to make an “informal will application” to the Supreme Court to prove the document was intended to be the person’s last will. For such an application, extensive evidence is required and there is a significant expense.
A court can declare any document or part of a document to be a valid will, an alteration of a will, or revocation of a will, if it is satisfied the testator intended that the document be their will. Under the Acts Interpretation Act 1954, “document” has a broad definition and includes any paper or other material on which there is writing, or meaningful marks, figures, symbols or perforations; and any disc, tape or material from which sounds, images, writing or messages can be produced or reproduced.
If language used in the will make the will or part of it meaningless, or ambiguous on the face of it or in the current circumstances, a court is permitted to consider evidence of the testator’s intention to help interpret the language used.
A will is revoked by:
- the making of a new one;
- a marriage, civil partnership or de facto relationship;
- divorce, annulment or end of a civil partnership;
- express revocation;
- the testator burning, tearing or other wise destroying it with an intention to revoke it;
- the testator writing on, or dealing with it, in a way that satisfies the court of an intention to revoke it.
A will should be updated in situations such as when:
- the testator marries or enters a de facto relationship;
- the testator separates, divorces, or ends a de facto relationship;
- the testator has children or grandchildren;
- an executor or beneficiary dies;
- a testator buys or sells property;
- a testator’s financial situation changes significantly.
A person who dies without a will is said to have died “intestate” and their estate is distributed according to the intestacy rules in the Act. The Public Trustee becomes responsible for administering the person’s estate unless someone else applies and is granted “letters of administration”.
Under intestacy rules, the person’s estate becomes the property of next of kin, in order of priority listed under the Succession Act.
For advice or representation in any legal matter, please contact Armstrong Legal.