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Wills and Estates in Brisbane

In Brisbane, the Succession Act 1981 (Qld) governs the area of law that relates to wills and estates. The field of succession law covers everything from testamentary preparation of a will, to probate, and will dispute litigation. This is quite a complex area of law, and it is made more difficult to navigate because the rules differ in each Australian state and territory. This article explains the importance of wills and how testamentary instruction impacts on the administration of a deceased estate.

Wills and estates in Brisbane: wills

It is highly advisable that every adult have a valid, comprehensive last will and testament. A will is a legal document that stipulates a testator’s wishes for their estate and appoints an executor to carry out these wishes. Making a will is the kindest act that a testator can do to minimise the hardship for their loved ones after his or her death. When someone dies intestate (without a will), their family experiences greater inconvenience, uncertainty and expense, which is the last thing that a grieving family needs.

Wills and estates in Brisbane: deceased estates

In Brisbane, a deceased estate is made up of the deceased’s assets and liabilities. A will must account for all the deceased’s assets included in the estate, such as real estate, personal possessions, cars and shares. However, a will may not include every possession of the deceased, as jointly owned property and assets held in trust are not included in the deceased estate.

A will should be written in a way that is easily comprehensible, with clear identification of assets and beneficiaries. Often a testator will also include non-binding instructions in their will, for funeral arrangements, or regarding the guardianship of children. These instructions are not legally enforceable, but may guide the executor or administrator in their administration of the estate.

Who can make a will in Brisbane?

All adults in Brisbane who are of sound mind are advised to make a will to account for the assets of their estate in the event of their death.  Even a young adult with a small asset portfolio should make a will to provide a measure of comfort for their loved ones if the unforeseen occurs.  A minor can only make a will if he or she is married or planning to marry, or with the permission of the Supreme Court, as the law assumes that a child cannot fully comprehend the gravity involved in testamentary affairs. In fact, no person can make a will unless they have testamentary capacity and can understand the implications of their actions. A solicitor will not take instruction from someone unless it is clear that the client is acting of his or her own volition, and has full comprehension and intent to make a will.

Revocation of a will in Brisbane

When a testator marries in Brisbane, the union revokes any previously executed will unless the will was drafted in contemplation of marriage. Divorce also has a revocation effect on any provision for a former spouse that was included in a will, unless the testator clearly expressed in the will that the provision should continue despite the termination of the marriage.

Informal wills and deceased estates in Brisbane

Succession law in Brisbane requires a document to conform to certain drafting and execution rules in order to be a formal, valid will. An experienced wills and estates solicitor can help a testator draft a will to meet these requirements. The most straightforward of these requirements are the physical structure of the written document:

  • The will should either be typed or neatly handwritten;
  • The testator must sign the will and initial every page; and
  • Two independent witnesses (not the spouse or a beneficiary) must observe and affirm the testator signing the will.

A document that does not conform to these requirements is an informal will. The Court will assess an informal will, and either validate the document if there is clear testamentary intent, or find that the will is invalid (which may result in the estate being intestate if there is no other valid will).

Amending a will to reflect a changing estate

A testator cannot make valid changes to a will by making casual notations on the document. Amendments to a will must be properly executed in front of witnesses just as the original document was formalised. In order to avoid any confusion or challenge to the validity of a will, it is preferable to make a new and comprehensive will to implement changes.

Who holds the will in Brisbane?

The testator’s solicitor can safeguard the original will, and can send a copy to the Public Trustee to keep on file. The testator should keep one copy in a safe location where the executor can easily find it when necessary. In fact, it is sensible for a testator to inform at least the nominated executor/s of the location and contents of the will to avoid delays in finding the document when the time comes.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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