Non-Binding Clauses Of A Will (Qld)
A testator has the freedom to include many different types of clauses in his or her last will and testament. Some clauses are essential to make the will legally valid and binding, but most testators also include non-binding clauses in their will to give effect to their testamentary wishes. This article outlines the legal implications in Queensland of some commonly used non-binding clauses of a will.
Non-Binding Clauses Of A Will: Guardianship Of Children
If a testator has minor children, a clause will generally be included in their will assigning testamentary guardianship of children to a specific person. Appointing a guardian allows a testator some peace of mind over the future welfare of their children in case of tragedy, and minimises the possibility of family disputes over guardianship. A guardianship clause often outlines the testator’s wishes for the upbringing of their child (such as education, religious instruction, and general care). The guardian will take responsibility for making decisions on the care and upbringing of the children after the death of the testator, but it does not necessarily follow that the child will live with the testamentary guardian.
A testator should discuss their intention to appoint a guardian in their will with the person, and make sure they are willing to accept the responsibility. It is also advisable for the will to appoint substitute guardians in the event that the original choice is unavailable or unwilling to serve as guardian. A testator’s wishes with regard to guardianship will usually be heeded, but it must be noted that they are not legally binding. The Family Court will only intervene to displace the wishes expressed in the will if it is deemed necessary in the best interest of the children.
Guardianship clauses are more complicated when children have parents who share joint parental responsibility but are not partners. In Queensland, succession law provides that if a parent dies leaving guardianship of their children to someone other than the other parent, then the testamentary guardian shares parental responsibility with the remaining parent. Under these provisions, if the surviving parent does not agree, they must apply to the Queensland Supreme Court to revoke the appointment of the testamentary guardian. However, this may be unnecessary, as the federal Family Law Act 1975 overrides Queensland law and the surviving parent automatically has sole parental responsibility for the child. As such, provision for guardianship in a will in Queensland is only effective when both parents are deceased, and there is no overriding Family Court or Federal Circuit Court order that specifies where the children should reside.
Non-Binding Clauses Of A Will: Organ Donations
Some testators include a clause to state their wishes to make organ donations. However, this is not the most effective way to record an organ donation decision because organ donations are time-sensitive.
In Queensland, the Transplantation and Anatomy Act 1979 provides that organ donation can only go ahead when the deceased nominated for donation or never expressed an objection to a donation and the senior next of kin gives permission.
Therefore, someone who wishes to nominate for organ donation should record their wishes on the Australian Organ Donor Register, and also inform their next of kin so that the family can approve action without delay. (It should be noted that ticking the organ donation section of a Queensland Drivers Licence is not legally binding.)
Funeral And Burial Arrangements
There is often confusion about who is able to make decisions about funeral and burials arrangements for the deceased.
Many testators insert burial and funeral instruction clauses into the will, believing that this will be the deciding provision. The next of kin of the deceased will often believe that they have the right to make these arrangements. In fact, the personal representative of the deceased (ie the executor appointed in the deceased’s will) is responsible for decisions relating to the burial and funeral arrangements of the deceased. The executor (or administrator) of the estate decides the date, location, and guest list for the funeral, and there is no legal recourse for the next of kin to overturn these decisions. However, the executor does have to heed the wishes of the testator where the testator has specified cremation in their will, as the Cremations Act 2003 states that an executor is obligated to follow a testator’s cremation instructions.
A testator often inserts non-binding clauses into his or her will either because they are unaware that they are not binding, or simply to convey their wishes to their executor and family members. The experienced solicitors at Armstrong Legal can advise you on what clauses are binding and how best to phrase these clauses to convey your testamentary intent. Our contested wills team can also help if you need advice or representation because of confusion or dispute over a non-binding clause in a will, or any other probate or succession issue. Please call 1300 038 223 or contact us to let us know how we can help.