A will that does what you intend.
Careful drafting now prevents contested estates, intestacy disputes, and executor headaches later.
Most people assume their will is a formality. It is not. A will is a legal document that operates after you have no ability to explain what you meant, correct what is wrong, or change what you now regret. Getting it right the first time matters.
Queensland courts probate wills and administer estates under the Succession Act 1981 (Qld). The rules are precise about what a valid will requires: adult testator, testamentary capacity, intention, and proper execution. A document that misses any of those requirements may need expensive court intervention to be admitted as a will at all, under the informal will jurisdiction in s 18 of the Act.
The other scenario is no will at all. Dying intestate does not mean the law ignores your estate. It means the law distributes it for you, under a formula in Part 3 of the Succession Act 1981 (Qld) that has nothing to do with your relationships, your promises, or your intentions.
A properly drafted will costs a fraction of what a contested estate costs. Fraser Lawyers prepares wills for individuals, couples, blended families, and estate plans that involve testamentary trusts for asset protection or tax flexibility.
What we help with
Fraser Lawyers assists with wills and estate planning matters, including:
- Matter
- What it usually involves
- Simple wills
- Straightforward distribution of assets to spouse, partner, children, or named beneficiaries
- Mirror wills
- Reciprocal wills for couples with matched or complementary terms
- Testamentary trust wills
- Wills that establish a discretionary trust on death, often for asset protection or tax purposes
- Estate planning advice
- Structuring assets and ownership to reflect succession intentions
- Will reviews and updates
- Updating wills after marriage, separation, birth of children, asset changes, or business events
- Executor appointment advice
- Identifying and advising on suitable executor and trustee appointments
- Informal will applications
- Court applications to admit documents as valid wills under s 18 of the <em>Succession Act 1981</em> (Qld)
- Intestacy advice
- Advising families where a person has died without a valid will
- Blended family planning
- Wills and structures for second relationships, stepchildren, and competing interests
- Superannuation nominations
- Binding death benefit nominations and their interaction with estate planning
The categories matter because they require different approaches. A simple will for a single person with modest assets is not the same exercise as a testamentary trust will for a business owner with a blended family. The documents that look similar on the surface can produce very different results, and very different estate administration challenges, depending on how they are drafted.
Fraser Lawyers considers the whole picture before advising on the structure most appropriate for your circumstances.
What happens after you are charged.
To make a valid will in Queensland, you must satisfy each of the following requirements.
Age. You must be 18 years of age or older (with limited exceptions for married persons under 18 or those on military service).
Testamentary capacity. You must understand the nature of what you are doing, the extent of your assets, who might reasonably expect to benefit from your estate, and that you are making a will. A person who lacks capacity at the time of execution cannot make a valid will, even if they had capacity at other times.
Intention. The document must be intended to operate as your will, not merely a note, draft, or expression of wishes.
Execution. Under s 10 of the Succession Act 1981 (Qld), the will must be in writing, signed by the testator (or by another person in the testator’s presence and at their direction), and witnessed by at least two persons who are present when the testator signs.
A beneficiary who witnesses a will may lose their gift under the will, though the will itself remains valid. Executors can witness without losing their appointment.
Where a document does not meet the formal requirements, the court may nevertheless admit it as a will under s 18 of the Succession Act 1981 (Qld) if it is satisfied the deceased intended the document to form their will. Courts have exercised this power in relation to handwritten notes, unsent text messages, and electronic files. The application is not straightforward and requires evidence of the deceased’s testamentary intentions.
The will you wrote a decade ago may not reflect the life you have now.
Marriage revokes a will made before it, unless the will was made in contemplation of that marriage. Divorce revokes a gift to a former spouse and their appointment as executor, but does not revoke the whole will. Separation alone does not revoke anything.
Having children after you make a will does not automatically revoke it or add those children as beneficiaries. If you want a child born after your will to benefit from your estate, the will needs to say so.
Other events that commonly warrant a review include: significant change in assets (property purchase, sale of a business, inheritance), change in your relationship with a nominated beneficiary or executor, death of a beneficiary or executor, or new blended family circumstances.
A will review is not a long process. What takes time is discovering, after someone dies, that their will no longer reflects their circumstances and the estate must be administered under a document that is years out of date.
What DIY and online wills cost you.
Newsagency will kits and online will generators are legal documents. The question is whether they produce the outcome the person who signed them intended.
The common failure modes are not dramatic. A gift to a beneficiary who predeceases the testator, with no substitution clause. A residuary clause that fails to capture all assets. A superannuation nomination left unchanged for 15 years. An executor named without any consideration of whether that person is appropriate, willing, or capable.
The problem does not become apparent while the testator is alive and can fix it. It becomes apparent when the executor has to administer the estate and discovers what the document does and does not say.
The cost of professional will preparation is modest relative to the cost of court proceedings, delayed distributions, and family conflict that can follow a poorly drafted document. That observation is not a sales point. It is a statement about how probate litigation actually starts.
Deadlines and risks.
There is no deadline for making a will. The risk is not a legal time limit. The risk is incapacity.
A person who loses testamentary capacity after the fact cannot make or update a will. The existing will (if there is one) governs the estate. If there is no will, the intestacy rules apply. Neither of those outcomes is under the control of the person who needed to act but did not.
Where intestacy applies, Part 3 of the Succession Act 1981 (Qld) distributes the estate in a prescribed order: spouse or de facto partner first, then children, then other relatives. The distribution depends on whether the deceased left a spouse, children, or both. The statutory formula is fixed. It does not accommodate promises made, relationships built, or intentions held but never recorded.
Intestacy can also create administration difficulties: without an executor appointed by will, the estate requires an application for Letters of Administration, which adds cost and time to an already difficult process.
How Fraser Lawyers acts in these matters.
Fraser Lawyers takes instructions directly from the client. The process begins with understanding your assets, your family circumstances, your intentions, and any particular concerns about how your estate should be managed or distributed.
From there, Blake Fraser prepares a draft will and explains each operative provision before execution. Where testamentary trust structures are appropriate, the firm advises on the structure, the trustee appointments, and how the trust interacts with the overall estate plan.
For clients with existing wills, Fraser Lawyers reviews the document against their current circumstances and advises whether amendments are required. Where a new will is needed, the old will is formally revoked and replaced.
After execution, the firm advises on safekeeping and where the original will should be held.
Documents to bring.
- List of assets Property, bank accounts, superannuation, investments, business interests
- Existing will If you have one already, bring the original or a copy
- Superannuation details Fund name and whether binding nominations are in place
- Life insurance details Policy details and nominated beneficiaries
- Family details Names and dates of birth of spouse, de facto partner, children (including stepchildren)
- Proposed executor details Name and contact details of person you are considering appointing
- Proposed beneficiary details Full names and, where possible, addresses
- Property title details Address and ownership structure (sole, joint tenants, tenants in common)
- Business interests Company constitutions, trust deeds, partnership agreements if relevant
- Any specific bequests Particular items or sums you want to leave to specific people
The likely path.
Step 1 — Initial consultation.
You meet with Blake Fraser to discuss your assets, family circumstances, and intentions. The firm identifies which type of will is appropriate and whether any additional estate planning steps (such as reviewing superannuation nominations or property ownership structures) are relevant.
Step 2 — Draft preparation.
Fraser Lawyers prepares a draft will and, where relevant, a draft testamentary trust deed. The draft is sent to you with an explanation of each operative clause. You review it and raise any questions or changes before execution.
Step 3 — Review and finalisation.
Any amendments are made and a final version is prepared. The firm explains the execution requirements, including the need for two witnesses to be present simultaneously when you sign.
Step 4 — Execution.
You sign the will in the presence of two witnesses. Fraser Lawyers can arrange witnessing at the office or advise on proper procedure if you are executing elsewhere. A copy is retained for the firm’s file and the original is returned to you for safekeeping.
Step 5 — Safekeeping advice.
You receive advice on where to keep the original will and how to ensure your executor knows where to find it when the time comes. This step is often overlooked and occasionally results in a will that exists but cannot be located.
Questions we hear often.
Plain-English answers to the questions clients tend to ask. If your question is not here, call us.
Get in touchWhat happens if I die without a will in Queensland?
Your estate is distributed under the intestacy provisions in Part 3 of the Succession Act 1981 (Qld). The distribution formula depends on whether you leave a spouse or de facto partner, children, or both. If you leave a spouse and children from that relationship, the spouse usually takes the whole estate. If children are from a prior relationship, the formula divides the estate between the spouse and those children. If you leave no spouse and no children, the estate passes to other relatives in a statutory order. The formula is fixed and does not accommodate informal promises or long-term relationships that fall outside the definition of “spouse” or “de facto partner”.
Can a handwritten note or text message be treated as a will?
Possibly. Section 18 of the Succession Act 1981 (Qld) gives the court power to admit a document as a will if it is satisfied the deceased intended it to form their will, even if it does not meet the formal execution requirements. Queensland courts have admitted handwritten notes, electronic documents, and video recordings under this provision. However, the application requires evidence of the deceased’s testamentary intentions and is not automatic. The process involves court proceedings and can be expensive and uncertain. It is not a substitute for a properly executed will.
When should I update my will?
A will should be reviewed after any significant change in personal or financial circumstances. Common triggers include marriage (which revokes a prior will unless it was made in contemplation of that marriage), divorce or separation, birth of a child, death of a beneficiary or executor, substantial change in assets, purchase or sale of property, change in business interests, or a shift in your relationship with a named executor. There is no fixed timetable. The test is whether the document still says what you intend.
Who should I appoint as executor?
An executor manages the administration of your estate after you die. The role involves locating assets, obtaining probate, paying debts, managing any disputes, and distributing the estate to beneficiaries. It can take months to years depending on complexity. The executor should be someone you trust, who is capable of managing financial and legal matters, and who is likely to survive you. A spouse or adult child is common. A professional executor (such as a trustee company or solicitor) can be appointed where family relationships are complicated or where the estate is complex. Appointing an executor without discussing the role with them first is inadvisable.
What is a testamentary trust and do I need one?
A testamentary trust is a discretionary trust established by your will that comes into existence on your death. It allows assets to be held and distributed by a trustee rather than passing directly to beneficiaries. The main reasons to consider a testamentary trust are asset protection for beneficiaries (against divorce, bankruptcy, or litigation), tax flexibility through income splitting, and providing for minor children or vulnerable beneficiaries in a controlled way. Not every estate requires one. They add complexity to estate administration and are most useful where beneficiaries have assets of their own, are in relationships that may be at risk, or where tax outcomes are a meaningful consideration.
Does superannuation form part of my estate?
Not automatically. Superannuation is held in trust by your fund and does not automatically form part of your estate. On your death, the trustee of the fund decides who receives the benefit, unless you have a binding death benefit nomination in place. A binding nomination directs the fund to pay the benefit to your nominated beneficiaries (which can include your estate) and is binding on the trustee for the term of the nomination, usually three years. An outdated or lapsed nomination means the trustee exercises discretion, which may not align with your will. Reviewing your superannuation nominations is a standard part of estate planning.
Can someone challenge my will after I die?
Yes. Under s 41 of the Succession Act 1981 (Qld), an eligible person (including a spouse, former spouse, de facto partner, child, or dependant) may apply to the court for a family provision order if adequate provision has not been made for their proper maintenance and support from your estate. An application must be made within 9 months of the date of death. A will that is professionally drafted and takes into account the interests of eligible persons is not immune from a claim, but considered planning reduces the risk that any claim will succeed.
Talk to Fraser Lawyers about your will and estate plan.
A short enquiry is usually sufficient to establish what is needed and what the process looks like. Fraser Lawyers is based at 86 Bundall Road, Bundall, and acts for clients across the Gold Coast and Queensland.
Visit us in Bundall.
Five minutes from Surfers Paradise, ten from Robina. On-site parking. Talk to us about your matter; we will tell you what we think and what the next step is.
- Office86 Bundall Road, Bundall QLD 4217
- Phone(07) 5554 6116
- Email[email protected]
- HoursMonday to Friday, 8:30am to 5:00pm