The Need for a Will

If you want your estate to be distributed in a particular way upon your death, a will is essential.

If a will is not made, the estate will be distributed according to the intestacy rules contained in the Succession Act 1981 (Qld) (Succession Act). The rules ensure a distribution of property, in certain proportions, to the relatives of the deceased person. Friends or charities do not receive property under the intestacy rules.

Who may make a will?

Anyone over the age of 18 may make a valid will, as long as they are of sound mind, memory and understanding. A person under 18 years of age can make a will in contemplation of marriage. In addition, a married person under the age of 18 may make a valid will.

A will must be made of the testator’s free choice and without pressure being exerted by anybody.

When very old people wish to make or alter a will, the question of their mental capacity to do so may arise. Legal advisers taking and carrying out instructions from a very old person must be satisfied that the testator comprehends the nature of their actions and its effects.

A will should comply with the following formalities:

• The will should be in writing. ‘
• It should be signed by the person making it.
• The will should be dated when it is signed.
• The signature of the testator should be witnessed by two witnesses.

If these formalities are not complied with, the will may not be valid and the deceased’s estate will be dealt with as an invalid Will. 

Executor of the Will

You must appoint an executor or executors to carry out the terms of the will. Any person who is 18 years of age or older may be an executor, as long as they do not lack mental capacity.  You should consider appointing more than one executor. Appointing more than one executor is also a safeguard to ensure that the executor actually carries out the testator’s wishes, because executors must act jointly and unanimously.

Custody of a will

A will is a very important document and should be kept in a safe place. Solicitors, the Public Trustee and private trustee companies will usually hold a will for a person and not charge for this service. The executor ( who will execute the Will) or a close friend or relative should be told the whereabouts of the will so that it can be easily located when the testator (the person making the Will) dies.

What you can include in your Will

A will may contain:

• a clause containing burial instructions.

• a clause donating organs for transplant purposes.

• a clause donating a body or body parts for research
• a clause appointing a guardian for minor children. A guardian can be appointed to act in the event of the death of one or both parents. However, a guardian whose appointment takes effect on the death of only one parent will be required to make decisions together with the surviving parent regarding the long-term care and welfare of the child. Any dispute may have to be resolved by the court.

What if a person dies without a Will

When a person dies without a Will or a valid Will, the estate is distributed between the deceased’s spouse or de facto spouse and children and then among the deceased’s next of kin. Next of kin receive property from an estate in accordance with the degree of their relationship to the deceased.

The people regarded as next of kin in this context are parents, brothers, sisters, grandparents, uncles, aunts, nephews, nieces and first cousins.

Grandchildren are entitled to share in an estate only if their parent, a child of the deceased, dies before the intestate. 

Jointly owned property

The interest of a deceased person in real estate or other property held by joint tenancy passes to the surviving joint tenant or tenants without the need for a grant of probate or letters of administration. If property is owned by tenants in common, on the death of one of the tenants in common, the deceased person’s fractional share is distributed according to their will.

Source: Caxton Legal Centre Inc

Queensland Law Handbook Online – Your Practical Guide to the Law in Queensland