Sunshine Coast wills and estates lawyers help people prepare wills, plan for incapacity, obtain probate, administer deceased estates and resolve inheritance disputes. Queensland law distinguishes a challenge to a will’s validity from a family provision application seeking further provision from an otherwise valid estate.
If a dispute is possible, get advice before assets are distributed: the usual family provision filing period is nine months from death, and written notice before six months helps protect a claimant’s position.
How wills and estates lawyers can help
A useful first consultation should identify the problem before anyone starts preparing documents. A person making a will needs advice about ownership, family obligations and who can carry out the instructions. An executor needs a workable administration plan. A disappointed beneficiary needs an assessment of the legal claim, the available estate and the likely cost of pursuing it.
Wills and estates lawyers should distinguish those tasks from the outset. The executor’s solicitor ordinarily acts for the executor in that capacity; a beneficiary should not assume that the same solicitor is protecting the beneficiary’s individual interests.
| Your situation | Work to consider | What to bring |
| Making or updating a will | Gifts, residue, substitute beneficiaries and executor appointments | Existing will, family details and asset information |
| Planning for incapacity | Enduring power of attorney and decision-making arrangements | Existing appointments and details of proposed attorneys |
| Acting after a death | Identify the appropriate grant, collect assets, pay liabilities and distribute | Original will, death certificate and financial records |
| Concerned about an inheritance | Assess validity, family provision or administration issues | All available wills, correspondence and a chronology |
For Sunshine Coast residents, the important questions are often practical. Is the home owned jointly? Does a second marriage create competing expectations? Is most of the family wealth in superannuation or a business? Wills and estates lawyers need those answers before recommending a document or a court application.
Wills and estates lawyers and a properly prepared will
A will should deal with the estate that actually exists, including what remains after specific gifts, debts and administration expenses. That remaining estate is the residue. A document that distributes several named assets but says nothing effective about the residue can leave part of the estate to the intestacy rules.
Choose an executor who can keep records, make decisions and manage disagreements. Consider a substitute if the first choice dies, loses capacity or cannot act. An appointment made to avoid hurting someone’s feelings may be a poor choice if that person cannot deal impartially with the beneficiaries.
The site’s guide to drafting a will and choosing an executor introduces these planning decisions. The current statutory requirements discussed below should govern the execution arrangements.
Signing and witnessing the will
Under section 10(2) of the Succession Act 1981 (Qld), a will must be in writing and signed by the testator, or by someone else in the testator’s presence and at their direction. The testator must make or acknowledge the signature before at least two witnesses present at the same time: section 10(3). At least two witnesses must then attest and sign in the testator’s presence, although they need not sign in each other’s presence: section 10(4).
Use independent witnesses who are not receiving gifts. Section 11(2)–(3) can invalidate a gift to an attesting beneficiary, subject to specified exceptions. The defect concerns the gift; it does not automatically invalidate the entire will.
Wills and estates lawyers also assess whether the client understands the proposed will and gives independent instructions. Where capacity or pressure is a concern, a careful file note, appropriate medical evidence and an interview without an interested relative present may matter far more than elaborate wording.
Case example one An unsent message admitted as a will
In Re Nichol; Nichol v Nichol & Anor [2017] QSC 220, Brown J accepted an unsent text message as an informal will. The Court examined the message and surrounding evidence, including whether the deceased intended it to operate as his will and had testamentary capacity. The decision applied section 18, particularly the intention requirement in subsection (2).
That outcome is a reason to preserve electronic material after a death. It is also a poor basis for choosing an informal estate plan. Establishing the message’s status required contested proceedings; a properly executed will could have avoided that particular dispute. Wills and estates lawyers should investigate an informal document rather than dismiss it merely because it lacks signatures.
What property will the will actually control
Start with ownership. A will does not give its maker unrestricted power to distribute every asset they use or control. Superannuation, jointly owned property, company assets and trust assets require separate investigation.
| Asset or arrangement | Usual starting position | What needs checking |
| Solely owned home or bank account | Generally an estate asset | Debts, security interests and the will |
| Property owned as joint tenants | Generally passes to the surviving joint tenant | Registered ownership and any dispute about beneficial ownership |
| Property owned as tenants in common | The deceased’s share generally forms part of the estate | The size of the share and any co-ownership arrangements |
| Superannuation death benefit | May be paid outside the estate | Fund rules, nominations and eligible recipients |
| Company or family trust property | Ownership by the entity or trustee must be distinguished from personal ownership | Shares, loans, trust deed and succession to control |
The Australian Taxation Office guidance on superannuation death benefits explains the role of fund rules and death benefit nominations. A will alone does not compel a superannuation trustee to pay the benefit to the estate. Wills and estates lawyers should check the nomination itself, including whether it remains effective, rather than rely on a client’s recollection of completing a form years ago.
Real world example A second marriage and the family home
Assume a Caloundra homeowner wants their half of a home to pass to children from an earlier relationship. If the home is held with the new spouse as joint tenants, a clause leaving that half to the children will generally not achieve the intended result: survivorship ordinarily operates outside the will.
Changing the ownership arrangement may be relevant, but it should follow advice about the whole plan. The spouse’s housing needs, possible family provision rights, mortgage arrangements and the consequences of any proposed transfer all deserve attention. Wills and estates lawyers should test the intended outcome against the title before drafting the gift.
When wills and estates lawyers should review an existing plan
Review the documents after a marriage, relationship breakdown, birth, death, significant acquisition or change in business ownership. A will that was sensible ten years ago may now appoint an unsuitable executor or give away an asset that has been sold.
Marriage generally revokes a will, subject to substantial exceptions, including provisions concerning the person who becomes the spouse and wills made in contemplation of marriage: section 14(1)–(3). Divorce generally revokes gifts and appointments involving the former spouse, with exceptions and a contrary-intention qualification under section 15(1)–(4). Separation while still married should trigger an immediate review; do not assume that moving out has the effect of a divorce.
An enduring power of attorney serves a different purpose. It concerns decisions during life, including arrangements for loss of decision-making capacity. The Queensland Government explanation of enduring powers of attorney describes financial, personal and health matters and when authority operates. Wills and estates lawyers can coordinate these appointments with the will, while making clear that appointment as executor does not itself confer authority to manage the person’s affairs during life.
Probate and estate administration with wills and estates lawyers
After a death, find and preserve the original will, identify assets and liabilities, and establish whether a grant is needed. Probate recognises the will and the executor’s authority. Where there is no effective executor able and willing to obtain probate, letters of administration with the will may be appropriate. If there is no valid will, the relevant grant is ordinarily letters of administration on intestacy.
A grant is not necessary for every estate. The assets involved and the requirements of the institutions holding them affect that question. Wills and estates lawyers should check those requirements before incurring application expenses.
The Queensland Courts grant application guide requires advertisement in the Queensland Law Reporter and notice to the Queensland Public Trustee. Applicants must allow the prescribed periods: at least seven days after the Public Trustee receives notice and fourteen days after publication, with filing dates calculated in accordance with the Court’s guidance. The application and supporting documents are filed in the Supreme Court of Queensland. Those waiting periods are not estimates of how long the whole administration will take.
The executor must account for decisions and money
Section 52(1)(a), (b) and (d) requires a personal representative to collect and administer the estate according to law, provide an inventory and account when required by the Court, and distribute subject to administration as soon as may be. Under section 52(2), neglect of those duties can lead to court orders, including damages, interest and costs.
Keep estate funds separate, retain invoices and record why assets were sold or retained. A beneficiary’s request for information is easier to answer from a proper estate ledger than from months of reconstructed bank transactions. Wills and estates lawyers can help establish that system before a disagreement develops.
Where the executor proposes to sell a home, probate authority, title requirements and the sale contract need to be coordinated. The guide to selling property on the Sunshine Coast provides background on the conveyancing side; the estate’s authority to sell and distribute must still be addressed separately.
If there is no valid will, distribution follows section 35 and Schedule 2 of the Succession Act, with the Schedule 2 distribution rules depending on the surviving family. A spouse does not invariably receive everything where there are children. An informal family agreement should not be treated as a substitute for identifying the legal entitlements first.
Wills and estates lawyers and inheritance disputes
There are three questions that should not be collapsed into one. Is the will valid? Has an eligible person received adequate provision? Is the estate being administered properly? Each requires different evidence and may require a different remedy.
A validity dispute might concern execution, capacity, knowledge and approval, or undue influence. A family provision application proceeds on a different basis: even a valid will can fail to provide adequately for an eligible applicant. An administration dispute may concern delay, missing accounts or conduct by the personal representative.
Wills and estates lawyers should identify which issue the facts support before sending allegations to the executor. A suspicious change of beneficiary does not, by itself, prove undue influence. Nor does an unequal distribution establish inadequate provision.
Family provision is not a right to an equal inheritance
Under section 41(1), the Court may order provision for a spouse, child or dependant where adequate provision has not been made for proper maintenance and support. Eligibility requires attention to the statutory definitions, including section 5AA, section 40 and, for stepchildren, section 40A. Financial dependence alone does not make every adult relative an eligible dependant.
The assessment needs evidence of the applicant’s circumstances, estate resources, competing claims and relevant relationships. A solicitor should ask for bank statements, liabilities, income, housing needs and medical material where relevant. A strong account of family disappointment cannot replace that evidence.
Case example two An excluded adult child did not establish a claim
In Vigolo v Bostin [2005] HCA 11, an adult son relied on his contributions to the family farming enterprise and earlier promises by his father. He had substantial means, and the history included a settlement rearranging the family’s business affairs. The High Court dismissed his appeal against refusal of family provision.
The case arose under Western Australian legislation; it does not supply Queensland’s eligibility rules or deadlines. Its practical relevance is that family provision is not an exercise in enforcing a disappointed expectation without reference to the statutory test. Wills and estates lawyers must assess the applicant’s circumstances and the whole relationship, rather than assume exclusion itself establishes entitlement.
Six months and nine months mean different things
The usual filing period is nine months after death under section 41(8). The Court can direct otherwise, but an extension should never be assumed. The period runs from death, not from the grant of probate or the date someone discovers the will.
The six-month point concerns protection for personal representatives who distribute properly without notice of a claim or intended claim: section 44(3)(a). Notice must be written and signed by the applicant or their solicitor under section 44(4). Where notice has been received, section 44(3)(b) addresses protection for distribution after nine months unless written notice of commencement or a copy of the application has been received.
Accordingly, wills and estates lawyers should address notice, filing and notification of commencement as separate steps. A notice letter does not commence proceedings. Filing an application should not be treated as a reason to leave the executor uninformed.
Real world example Probate has not yet been obtained
Assume a Nambour resident dies and an adult daughter learns seven months later that she has been excluded. The executor says probate is still being arranged. That does not restart or suspend the ordinary nine-month family provision period. She needs urgent advice about eligibility, notice, whether any distribution has occurred and filing before the deadline. Section 41(8) expressly allows the Court to hear an application even though a grant has not been made.
Evidence costs and resolving the dispute
Preserve earlier wills, letters, messages, financial records and the names of people who witnessed relevant events. Where an informal electronic will is possible, preserve the device and obtain advice before altering or deleting material. A chronology should distinguish what a witness personally observed from what someone later told them.
A person seeking a deceased’s will may have inspection and copying rights under section 33Z(1) and (4). The statutory categories extend beyond beneficiaries named in the latest will, but the right is not a general entitlement for any interested member of the public.
Before litigation, ask wills and estates lawyers for an assessment of likely outcomes, the evidence still needed, and costs through the next meaningful stage. Do not assume the estate will pay everyone’s legal fees. The costs orders in Re Nichol and Vigolo illustrate that costs depend on the proceeding and the orders made, rather than a universal rule that inheritance litigation is funded by the estate.
Negotiation is more useful once the parties have reliable asset figures and understand the competing claims. The site’s explanation of mediation and other alternative dispute resolution methods provides background on those processes. A settlement still needs to address implementation, costs, who must be bound and whether court approval is required for anyone under a legal disability.
Choosing Sunshine Coast wills and estates lawyers
Ask whether the solicitor’s work matches the task. Preparing an uncomplicated will, administering a business owner’s estate and conducting contested probate litigation call for different work. Ask who will act, what is included in the initial fee estimate and which events could increase the cost.
For planning, bring the existing will, ownership records, superannuation nominations and a clear family outline. For an estate, bring the original will if available, death certificate, asset information and correspondence. For a dispute, add dates of death, notices, proposed distributions and any court documents. Give the solicitor the uncomfortable facts as well as the helpful ones.
The most useful early advice identifies what must happen now. That may be preserving evidence, serving notice, checking a title or replacing a will that no longer reflects the family’s circumstances. Good wills and estates lawyers should be able to explain the reason for that priority in plain terms.
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