Wills & Estates Lawyers Brisbane

How do wills work under Queensland law?

Wills and deceased estates in Brisbane are governed by Queensland's own legislation, the Succession Act 1981 (Qld).

Under section 10 of the Act, a will must be in writing and signed by the will-maker (called the testator) or by someone else in their presence and at their direction. The signature must be made or acknowledged in front of two or more witnesses who are present at the same time, and at least two of those witnesses must sign in the testator's presence. A gift to a witness can be void under section 11, so beneficiaries should not witness the will. A will made by someone under 18 is generally not valid, with limited exceptions connected to marriage or where the court authorises it.

Life changes matter in Queensland. Marriage, or entering a civil partnership, revokes an existing will, subject to some exceptions such as gifts to the person you are married to when you die. Divorce, the end of a civil partnership and, distinctively, the ending of a de facto relationship each revoke gifts to the former partner and their appointment as executor. If a document was never properly signed and witnessed, section 18 allows the Supreme Court of Queensland to accept it as a will if satisfied the person intended it to be their will, but that means a court application, with added cost.

What happens if someone dies without a will in Queensland?

Dying without a valid will is called dying intestate. The estate is then shared according to a fixed formula in Part 3 and Schedule 2 of the Succession Act 1981 (Qld).

If the person leaves a spouse and no children or other descendants, the spouse takes the whole estate. If there are descendants as well, the spouse receives $150,000 and the household chattels (furniture and everyday household items), plus one half of what remains if there is one child, or one third if there is more than one child. The descendants share the balance. A spouse who ordinarily lived in the shared home can elect in writing to acquire the deceased's interest in it. The election must be made within 3 months of the spouse's appointment as personal representative, or of written notice from the personal representative.

For these purposes a spouse includes a husband or wife, a civil partner, and a de facto partner who lived with the deceased as a couple for a continuous period of at least two years ending on the death. If there is no spouse or descendant, the estate passes to parents, then to brothers and sisters (and the children of any who died earlier), then grandparents, then uncles and aunts (and the children of any who died earlier), and finally to the Crown. Anyone who inherits on intestacy must survive the deceased by 30 days.

Where do you apply for probate in Brisbane?

Probate is the Supreme Court of Queensland's formal confirmation that a will is valid and that the executor has authority to deal with the estate. Where there is no will, or no executor able to act, the equivalent is a grant of letters of administration. The Brisbane registry is in the CBD at the QEII Courts of Law Complex, 415 George Street, a short trip from Fortitude Valley, New Farm, Newstead or Spring Hill. Law firms lodge through the Queensland Courts online portal; people acting for themselves file in person or by post.

Two steps must happen before anything is filed. You must publish a notice of your intention to apply in the Queensland Law Reporter and wait at least 14 days, and you must give a copy of that notice to the Public Trustee of Queensland and wait at least 7 days. The application is then filed with the original will, a certified copy of the death certificate and supporting affidavits (sworn written statements). If something is missing the registry issues a requisition (a request for more information); if all is in order the grant is issued electronically. Anyone claiming an interest in the estate can lodge a caveat, which is a formal objection that pauses the application until the dispute is dealt with.

Queensland Courts also point out that a grant is not always required. Banks and superannuation funds set their own requirements, assets held as joint tenants pass to the surviving owner, and Titles Queensland's process for recording a death often lets real estate be transferred or sold without probate.

Who can contest a will in Queensland, and how long do you have?

A family provision application asks the court to give you a share, or a larger share, of an estate because adequate provision was not made for your proper maintenance and support. It can be made whether or not there was a will. Under Part 4 of the Succession Act 1981 (Qld) only three groups can apply: the deceased's spouse, the deceased's child (which includes a stepchild and an adopted child, of any age), and a dependant. A dependant is someone who was wholly or substantially maintained or supported by the deceased and who is a parent of the deceased, the parent of the deceased's child who is under 18, or a person under 18. A stepchild's status ends if the deceased and the stepchild's parent divorced, ended their civil partnership or ended their de facto relationship, but not merely because the parent died first.

Both deadlines run from the date of death, not from the date of probate. The application must be started within 9 months after the death unless the court directs otherwise; an extension is never guaranteed. Separately, an executor who distributes the estate no earlier than 6 months after the death, without notice of an intended claim, is protected from liability. Notice must be in writing and signed by you or your solicitor, so it is safest for it to reach the executor inside 6 months.

Claims are filed in the Supreme Court of Queensland, or in the District Court of Queensland, which cannot order provision worth more than its $750,000 monetary limit. A family provision claim is different from challenging whether the will is valid at all, for example because of doubts about mental capacity or pressure on the will-maker. Those challenges usually begin with a caveat filed in the Supreme Court registry.

Enduring powers of attorney and advance health directives in Queensland

In Queensland the Powers of Attorney Act 1998 (Qld) provides for an enduring power of attorney, under which you (the principal) appoint one or more attorneys to make financial decisions, personal and health decisions, or both. You choose when the financial power begins, while the power for personal matters only operates when you lack capacity. The document must be signed in front of an eligible witness: a justice of the peace, commissioner for declarations, lawyer or notary public. It only has to be registered with the Queensland Titles Registry if your attorney will deal with Queensland land. An advance health directive is a separate document that records your own directions about future health care.

If someone loses capacity with no enduring document in place, the Queensland Civil and Administrative Tribunal (QCAT) can appoint a guardian for personal matters or an administrator for financial matters under the Guardianship and Administration Act 2000 (Qld). Any interested person, including a family member, can apply. QCAT's registry is at Level 8, 259 Queen Street, Brisbane.

How Queensland differs from other states

Succession law is state law. Each state and territory sets its own time limit for family provision claims, its own list of who may claim, its own intestacy shares and its own names for incapacity documents, so material written for another state can mislead you about a Queensland estate. Queensland's notice to the Public Trustee before a probate application is also a local requirement. If the deceased held assets in Queensland but the grant was issued interstate or overseas, the grant may need to be resealed by the Supreme Court of Queensland before it can be used here.