Wills and Family Estates

A will is a document setting out in a voluntary manner, your expression of wishes for how your property should be disposed of after death.  Your will can be changed by you at any time provided you have the mental capacity to do so.

The formal requirements of a Will are:

  1. That it is made by a person over the age of 18 years;
  2. It is in writing;
  3. It is signed by the testator, or someone else at the testator’s direction and in their presence, along with two (2) independent witnesses, all persons being present together at the same time, in the same place.

If the formalities have not been met, a court may admit a document to probate without the required formalities if it is clear that the person intended the document to be their will and to dispose of their property.  Most recently the courts have allowed an unsent text message to be admitted as a will – this doesn’t mean that you can forget about preparing a will and simply send a text message to your mate! The process of having the text message made into a will requires a costly court application – it’s far better and far more cost effective to simply have a will in place.

I don’t have much property – why do I need a Will?

Even if you don’t have much property, you should still have control over what happens to your property and personal possessions. Queensland intestacy laws require all deceased estates to be administered properly and if you die intestate (without a will) what you do have may be dealt with in a way you disapprove of.

What property is covered by a Will?

Your Will can dispose of all property owned by you, in your name, or in your possession or over which you hold a general charge – i.e. if someone owes you money at the time of your death, that would be included as property which needs to be collected.  This can include – property, shares, investments, insurance payments, cars, personal property, jewellery and any other items owned by you.

Is superannuation included in my property?

Superannuation is tricky.  Generally, the trustee of your superannuation fund has complete discretion in how your superannuation is to be paid.  This means that even if you state in your Will that your superannuation should be paid to your mother, the trustee can ignore that and pay your superannuation as it determines.

The only way you can control who your superannuation is paid to, is to enter into a binding death nomination with the superannuation company to bind the trustee to pay your superannuation as you direct.

A binding death nomination is different to the usual beneficiary nomination that you might complete when you open your superannuation fund.  This nomination of beneficiary is not binding.

Who should I appoint as my Executor?

A will should appoint an executor who will be a personal representative during the administration of an estate and perform a range of duties including:

  1. collecting all assets of the estate;
  2. paying debts due by the estate;
  3. finalising any tax returns and tax liability;
  4. arranging for the distribution of the estate in accordance with the terms of the Will.

Depending on what property you have, there might be some running around and administrative tasks that need to be undertaken.  You should appoint someone of sound mind who is capable of being organised and attending to any steps necessary to wind up your affairs.

Quite often an executor might consult with or engage with a lawyer for advice about what to do, or for assistance in undertaking all of the necessary steps.

Can a Will be automatically revoked?

Your Will can be revoked by a later Will, a document declaring intention to revoke the Will or actions that indicate an intention to revoke the Will.

A Will is generally revoked by marriage or entering into a civil partnership, save and except that where the person the testator is marrying or entering into a civil partnership is named in the Will, those appointments or gifts will not be revoked.

Similarly specific aspects of a Will are revoked by events at the end of marriage or civil partnership.  When a divorce order is granted appointments of or gifts to a former spouse are revoked, though any aspects in favour of children of that relationship will remain.  The same applies to the end of a civil partnership.

How often should I review my Will?

We recommend that you review your documents regularly and consult with a lawyer if you wish to change them, especially if any of the following events occur:

  1. You change your name or anyone named in the Will changes their name;
  2. If an Executor dies or becomes unwilling or unsuitable to act due to ill-health, age or for any other reason;
  3. If a Beneficiary dies;
  4. If any specific property has been left to a specific Beneficiary in your Will and you subsequently sell that property or it changes in nature;
  5. If the family situation of you or any Beneficiary changes (e.g marriage, divorce, matrimonial problems, children or further children, de facto relationship);
  6. If you become involved in a new business, company or Trust; and
  7. If you take up permanent residence in another state or overseas.

Otherwise, we recommend reviewing your Will every 2 – 3 years.

To find out more about preparing or reviewing your Will and how we can assist you in preparing those documents, contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.