Wills & Estates in Queensland

Wills & Estates are important legal documents and an individual’s opportunity to specify their wishes to loved ones upon their death.

It is important to consider changing and updating a will in the following circumstances:

• Marriage or entering a de facto relationship;
• Separation, divorce or end of a de facto relationship;
• Children or grandchildren are born;
• The chosen executor or a beneficiary passes away;
• Upon buying or selling property; or
• Financial circumstances change significantly.

Look for how to deal with Wills in Qld? Be referred to Wills & Estates lawyers on the Sunshine Coast

The creation and interpretation of wills is Queensland is governed by the Succession Act 1981 (Qld) (‘the Succession Act’).

Section 10 of the Succession Act sets out the formal requirements and information regarding the creation of a will in Queensland as:

• A will must be in writing and signed by either the testator, or someone else, in the presence of and at the direction of the testator.
• The signature must be made or acknowledged by the testator in the presence of two (2) or more witnesses present at the same time.
• At least two (2) of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other. However, none of the witnesses need to know that the document attested and signed is a will.
• The signatures need not be at the foot of the will.
• The signature of the testator must be made with the intention of executing the will.
• The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.
• A will need not have an attestation clause.
• A person who cannot see and attest that a testator has signed a document may not act as a witness to a will.
• If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.
• If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.

In the event the document purporting to state an individual’s testamentary intentions does not conform with the formal requirements, the document may be taken as the will, if the court is satisfied it was the deceased’s intention for it to be taken as such.

In this circumstance, the court may assess any evidence relating to the way in which the document was executed, and any evidence of the deceased’s testamentary intentions.

Great care is to be taken when assessing evidence of the Deceased’s testamentary intentions, as the evidence must go further than the document in question, and it must be established on the balance of probabilities that the deceased wanted the particular document to be their final will.

In the case of Julie Ellen Nichol v David Allan Nichol and Jack David Nichol [2017] QSC 220 the Queensland Court of Appeal adopted three (3) requirements when assessing informal wills:

• was there a document;
• did that document purport to embody the testamentary intentions of the relevant Deceased;
• did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was their then intention that the subject document should, without more on his part, operate as their will?

Regarding capacity, the established presumption of testamentary capacity does not exist in the absence of a formally executed will, therefore the onus of proving testamentary capacity where there is an informal will lies on the party seeking to convince the court the deceased intended the informal document to constitute his will.

If someone passes away without a Will, they are said to have died ‘intestate’ and in Queensland, the Public Trustee becomes responsible for the estate; unless someone else is granted letters of administration.

To avoid any doubt or question in relation to your testamentary intentions, it is highly recommended you consult with a solicitor to execute a formal will, in accordance with the requirements set out in the Succession Act.

It is recommended everyone over the age of eighteen (18) has a will.

Look for how to deal with Wills in Qld? Be referred to Wills & Estates lawyers on the Sunshine Coast