What to Consider When Writing Your Will: Queensland Edition

What are wills and why are they important?

Firstly, you might be wondering about the importance of a will. The importance of a will stems from its actual purpose. A will is a legal document that provides directions for your property and assets when you pass away. For those with children, a will can extend to provide instructions on their guardianship.

Due to the significance of property, assets, and children, it is determinant that you would want your wishes for same to be carried out exactly as mentioned in your will. In order for this to happen, your will needs to be carefully drafted. Things that can interfere with your will include:

• Conflicting instructions;
• Improper execution, for example missing signatures, or witnesses on the will;
• Lack of clarity on the chronology of your Will if they are undated, and
• Legislation can override the actual wording of your will.

Therefore, what you may have intended during the drafting of the will, won’t be what happens in practice.  For example, in Queensland if a will is not executed properly, it could be deemed invalid and thus dealt with under the rules of intestacy.[1] The rules of intestacy under the Succession Act make provisions for specific classes of people who are deemed your next of kin such as children or close family members, but if you have very specific wishes that may involve quasi-relatives or friends, they won’t be considered under the act.[2]

If your will is poorly executed, but still potentially valid, your Executor may be required to prove this with costly court proceedings which would deplete the amount of your estate that is able to be transferred to your intended beneficiaries.

Superannuation

A frequent misconception is that superannuation is included as part of your will. After all, it is your superannuation, or is it?  Well not entirely, it is held on trust by your superannuation trustee. The trustee has the discretion to distribute your superannuation to the parties it deems relevant to you on paper, for example your next of kin. There are ways to ensure your superannuation is allocated in the way in which you intend, by way of a Binding Death Benefit Nomination.[3] It is recommended that you have a solicitor review these and advise you of time limits on the submissions.

Guardianship of children

When you are writing your will, you have the ability to nominate another person to take care of your children until they turn 18. Deciding who to appoint as your guardian can be a complex decision, but we suggest you consider the following:

• Who your children might have the closest bond with;
• If it is easily accessible for the guardian to be able to take care for your children, for example proximity to your child’s school, or if the guardian is located overseas;
• Who is financially and physically able to take on the role; and
• Someone who has similar values and way of life to you.

Gifts & assets

You may have certain cherished items that hold sentimental value, that you may wish to leave to a certain person.  In your will you are able to leave gifts to certain people, this can include personal property and real property. So, it is important to think about whether you have any specific items or property you may wish to leave to a specific person.

When listing your assets, it is important to determine if the assets are going to be held as joint tenants or tenants in common,  as assets held as joint tenants will not form part of your estate. This is because when you own real property jointly, the surviving owner will acquire the property when you die.

Appointing an executor

When completing a will you can appoint up to four executors in your will. Executors are responsible for administering your estate so it is important to choose someone who is trustworthy and organised, as being an executor can be a very timely and complex role.  An executor also has many financial, legal and moral obligations, so finding the person who can substantially fill this role is essential.

If nominating a family member or someone close to you isn’t suitable or there is a possibility of family conflicts, you are able to nominate a State Trustee to be your executor.  It is important to note that nominating a State Trustee does have costs associated, which will be paid out of your estate.

Beneficiaries

Beneficiaries are the persons, organisations or charities who will benefit from your estate.  The named beneficiaries will inherit property, valuables, money, and/or any other personal belongings that you wish for them to receive.  When leaving certain items with certain beneficiaries, it is important to be specific, as this will ensure that your estate is settled according to your wishes.

Can an executor also be a beneficiary?

Yes, the executor can also be a beneficiary under the will. This is a common occurrence as usually someone who is trusted enough to be an executor of a deceased estate will be a loved one of the departed and is therefore likely to be someone who the departed would like to provide gifts or assets.

IMPORTANT: This is not advice. Readers should not act solely on the basis of the material contained in this article. Items herein are general comments only and do not constitute or convey advice per se. Also, changes in legislation may occur quickly. We, therefore, recommend that our formal advice is sought before acting in any of the areas covered in any newsletter.

This webpage is made available by Arrow White for educational purposes only as well as to give you general information and a general understanding of the law, but not to provide specific legal, tax, financial or investment advice. By using this webpage, you understand that there is no lawyer-client relationship between you and Arrow White. The webpage should not be used as a substitute for competent professional advice from a suitably qualified professional. Nothing on this webpage should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any asset by Arrow White or any third party. You alone are solely responsible for determining whether any investment, asset or strategy or any other product or service, is appropriate or suitable for you based on your investment objectives and personal and financial situation. You should consult a suitably qualified professional regarding your specific legal, tax, financial or investment situation.

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[1] https://www.courts.qld.gov.au/services/wills-and-probate/applying-for-a-grant/letters-of-administration-without-a-will

[2] https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1981-069

[3] https://treasury.gov.au/sites/default/files/2019-03/c2019-t371937-discussion-paper.pdf

Disclaimer: This publication is intended for general and informative use only and is not to be relied upon as professional financial or legal advice.

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