A Last Will & Testament is a document in which a person (the testator) sets out how he or she would like their property to be dealt with after their death. Commonly, this includes appointing someone to carry out the testator’s wishes (the executor) and disposing of property. In theory, a testator can dispose of his property in any way he or she sees fit. However, dependants, spouses, children and other people can contest the provisions under your Will so it is important to seek advice to ensure that your Will can be implemented without being contested.

A Will usually deals with a combination of the following:

• appointing a person (the executor) to carry out the terms of your Will;
• specifying the gifts in your Will and how assets are to be distributed;
• appointing a guardian for any underage children;
• trust provisions for bankrupt beneficiaries, underage children, disabled beneficiaries;
• testamentary trusts to better protect your assets and wishes;
• right for some beneficiaries to reside in property for their life and then the property gifted to someone else after death of that person;
• provision for special pets;
• options for some beneficiaries to have a first right to purchase property from the estate;
• conditional gifts.

It is important that you ask someone before appointing them as a guardian or executor.

A valid Will needs to be:

• in writing - it doesnt need to be typed by must be legible;
• it doesn't have to be in English but must be capable of translation to English;
• the testator must be at least 18 years of age (though a person under 18 can make a will in some circumstances);
• the testator must be of sound mind;
• generally signed and dated by the testator and witnessed by two independent witnesses.

To be considered "of sound mind":

• the testator must broadly understand what is in the estate (not down to the last cent, but generally what the assets are);
• appreciate the respective claims of anyone who may have an interest in the estate.

Once a Will is signed, it should be stored in a safe place (such as a fireproof safe). You should tell your family where your Will is kept. Swanwick Murray Roche offers a complimentary Will keeping service for our clients. It is important that the Will is not damaged or marked in any way. Additionally, if the Will is to be changed, you should seek advice.

Preparing for your Last Will & Testament appointment at Swanwick Murray Roche

Read this Information Sheet on our website for information on preparing for your Will appointment.

How much does it cost to make a Will in Queensland?

Read this Information Sheet on our website for more detailed information on the cost of Wills in Queensland (and at our firm).

Can a Last Will & Testament be changed?

The simple answer is yes. A will only ‘speaks from the date of death’, meaning that, as long as the testator retains capacity, a will can be changed at any time. As a matter of prudence, we recommend that you review your will every two to three years, just to ensure that it still meets your wishes.

A will is automatically revoked by a later inconsistent will. It is usual to include a clause in a new will expressly revoking any earlier ones. A will is revoked by marriage unless it has been made before the wedding and expressly states that it is made in contemplation of marriage to a named person. Divorce or the termination of a civil partnership does not revoke a will, however any gift to the divorced spouse or former partner is treated as if that person had died before the testator.

A will can also be revoked by the testator deliberately destroying it with the intention of revoking it. Of course, what the testator’s intention was is very difficult to prove, especially if a new will has not been made.

What if I don't make a Last Will & Testament?

If you die intestate (ie without a valid will), your property passes in accordance with rules laid down in the Succession Act 1981.

If there are no children, the estate passes to the spouse. If there is a spouse and children, the estate is divided between them in specific proportions, which could cause problems. If there are neither spouse nor children, the estate passes first to the deceased’s parents, then to his siblings. If the testator is in the unfortunate position of having no close family, the entire estate passes to the State of Queensland.

Can I make my own Last Will & Testament?

The simple answer is yes, although we do not recommend it. Even the simplest of wills can be prepared incorrectly. At best, this could mean a lengthy and expensive application to the Supreme Court to sort out the mess; at worst, the will is invalid and the estate is distributed under the intestacy rules, which may be the exact opposite of what the testator wanted.

Can I challenge a Will?

A will can be challenged in certain circumstances. If it is claimed that the testator lacked capacity due (eg to dementia or mental health problems), the will is invalid and the most recent valid will is used to distribute the estate.

Alternatively, a disappointed beneficiary can apply to the court for further provision from the estate. A spouse (including a de facto or civil partner) or child (including stepchildren) can apply on the basis that they have not been properly provided for. While other people can also apply, they will need to prove to the court that they were dependent on the testator in some way.

Click this link to a page on our website for more information about challenging a Will.