Wills & Estates

Estate Planning

Effective estate planning requires thinking about your family dynamics, financial and personal circumstances, and considering matters such as:

Preparing for the inevitable – having a valid Will to appoint an executor / trustee and to determine who receives your assets when you die.
Planning for the unforeseen – having powers of attorney in place so your legal and financial affairs can be dealt with appropriately if you are away, become unwell or incapacitated.
Ensuring your estate maintains value – distributing your assets in the most tax-effective manner, using a tailored approach specific to your circumstances.
Protecting assets and beneficiaries – creating testamentary trusts, if necessary, to safeguard your assets from third party creditors, and help protect minor and / or vulnerable beneficiaries.
Succession planning – ensuring appropriate arrangements are in place for business and company interests, whether those interests are to be wound up or handed down through generations.
Understanding what might trigger a potential family provision claim to be made against your estate and implementing strategies to minimise such claims.

What is a Will?

A Will is a written legal document that contains a person’s (testator’s) wishes as to what happens to their estate after their death. It provides instructions for a person or organisation (your executor / trustee) on how to distribute your estate.

Who can make a Will?

Anyone aged 18 years and over can make a legally valid Will, as long as they have the mental capacity to understand what they are doing. People under 18 can only make a valid Will if they are married or have a court order to authorise making a Will.

Types of things Wills cover

A Will usually includes details of how the testator’s assets, such as houses, cars, money, shares and cash will be handled upon the person’s death.

Wills should also specify the rights and powers of trustees and how particular belongings should be dealt with. It may also contain provisions regarding how the deceased person’s remains are to be dealt with, organ donation and who will act as guardian for any children of the deceased.

Dying without a Will

If someone dies without having a valid Will, their estate is described as “intestate”. The legislation that governs intestate estates in Queensland is the Succession Act 1981. The Act states that when a person dies intestate, their estate will first be distributed to their closest relatives, namely, their spouse and children. Unfortunately, this sometimes results in assets going to relatives that the deceased would not have chosen and means there are no provisions for those who were entitled and important to the deceased.

Legally valid Wills

For a Will to be legally valid it must be in writing, intended to be your Will and signed by you on each page, in front of at least two witnesses. The Will must also be dated at the time of signing.

If a person making a Will does not freely and voluntarily make their Will or have testamentary capacity with the intention to make a Will, the Will may be invalid.

Probate & Estate Administration

If you have been appointed executor of a Will, you will be responsible for dealing with the testator’s affairs after he or she dies. This includes a range of practical matters immediately after the person’s death, as well as the legal aspects of applying for probate, if necessary, and administering the person’s estate in accordance with the terms of the Will. This can be daunting, particularly during a time that you are likely grieving the loss of somebody close to you.

In most cases, executors carry out their responsibilities under the guidance of a lawyer as they will often need to consider matters outside their area of expertise, such as the tax implications on the sale or transfer of assets or the order of payment of debts. Executors may also need to deal with family disputes, frustrated beneficiaries or even potential claims that could be made against the estate.

What is Probate?

A grant of probate is a Court’s official recognition that a Will is valid and provides authorisation for an executor to deal with the estate assets.

The need to obtain probate usually depends on the size of the estate, the requirements of the institution where assets are held, and the circumstances of each case. For example, you may not need a grant of probate if the only significant asset is a family home held in joint names. In such cases, the home will automatically pass to the surviving joint owner.

Sometimes, a grant of probate may be recommended to provide an executor with additional protection from being personally liable with respect to the administration of the estate.

To obtain a grant of probate, the executor applies to the Supreme Court by filing the relevant application and supporting documents, and an undertaking to deal with the estate as required by law. These documents are usually prepared by an estate lawyer.

Once probate is granted, the executor may deal with the assets and commence administering the estate in accordance with the Will.

If a person dies intestate, it will be necessary to apply to the Court for letters of administration which will allow the administrator to deal with the assets in the same manner as an executor.

Challenging the validity of a Will

If a Queensland resident wishes to contest a Will, they must first give notice to the executor that they intend to contest the deceased’s Will. Notice to contest a Will should be done in writing and must be given within 6 months of the date of death of the testator.

In Queensland, you must prove you have a right to challenge the validity of a deceased person’s Will.

You have a right to challenge the validity of a deceased person’s Will if:

you are a beneficiary of the deceased’s previous or last Will; or
you are entitled to a share of the deceased’s estate under the laws of intestacy.

A Will can be challenged either because of claims that the Will is not legally valid, or because a dependant has not been sufficiently provided for.

Some grounds for challenging a Will include:

Undue influence – where a party (usually a beneficiary) used an unreasonable amount of influence over the deceased, which resulted in them preparing their Will in a certain way to unjustly benefit that party.
Allegations of fraud and/or allegations that the Will (or part of it) has been forged, for example, a forged signature of the deceased or claims that the Will is fake.
Deceased lacked the necessary testamentary capacity (mental capacity), to make the Will at the time it was executed. These types of claims will often arise where the deceased was elderly and / or sick for substantial periods of time or suffered from dementia or another type of memory loss.

The Supreme Court of Queensland determines the validity of Wills. If the Will is found to be invalid, the estate assets will be distributed according to the rules of intestacy.

Other types of estate litigation

Other reasons a Will may be contested include:

Whether the deceased’s Will contains any obvious errors or mistakes.
Disputes between beneficiaries as to how the deceased’s estate should be administered.
One or more of the beneficiaries would like the executor to be removed and replaced by another.

Estate litigation can become complex and emotional, especially where family circumstances are complicated and the disputes that arise may have been years in the making.

We can all take steps to simplify the management of our financial and legal affairs to help protect our hard-earned assets and provide clarity for our family when we die.

We have a wealth of experience in estate planning and succession law and can provide advice and guidance tailored to your individual circumstances.

If you need any assistance, contact one of our lawyers at [email protected] or call 07 5495 2733 for expert legal advice.