Wills, Deceased Estates, Contesting Wills
Wills are legal documents and consequently some legal language is unavoidable. Some words have their own meaning in the law, different to every day language. There are centuries of legal history in the background to every Will. The Succession Act 1981 (Qld) and the Trusts Act 1974 (Qld) also apply but it is unnecessary to repeat any of that history or that law in a Will that essentially should be expressed in the clearest terms. It is imperative that, when the time comes, an Executor can clearly understand the intention of the Testator as expressed in the Will. If necessary, a Lawyer can later advise of what history and law existed at the time of making the Will.
“Will Kits” are a potential disaster in the making but they are certainly cheaper than the cost of professional legal services. As a learned Judge once said “I hear you can also remove your own appendix but it hurts and there are risks.”
Sometimes there is disharmony within families, sometimes justified and sometimes not, resulting in relationship breakdowns. A term familiar to Succession Lawyers is “disentitling conduct”. A Testator, the person making the Will, may have the view that one beneficiary has a greater need for financial support than another – one child may be wealthy and another a disability support pensioner. This view may not be shared by the excluded child or step-child of the deceased who feels undervalued or even rejected. Resultant hurt, jealousy or any other negativity can result in a contest. The Court has to decide what a “fair minded Testator” would have done.
A Solicitor will assist your Executor to administer your Estate, but after advice the Executor may decide to undertake some of the administration without further incurring the cost of a Solicitor. We will do as much or as little as you want. Legal fees are a charge against the Estate funds and not the Executor personally and accordingly Tax Invoices issue upon completion of the matter. Perhaps you prefer the Solicitor to undertake only that part of the administration considered “legal work” e.g. obtaining Probate (when necessary) transferring of real estate etc. and charge without reference to a “service level” as is the case with the Public Trustee. Be aware that their “free” Will can be very expensive. Their Fees and Charges are now on a fixed fee basis (which seems to give the impression of some economy) for each “Service Level” - between $393.55 and $29,718.00 and thereafter an hourly rate of between $297.05 and $991.10 applies.
No, your Estate is not paid to the Government or to the Public Trustee if you die without a Will, i.e. intestate. Your immediate or extended family will benefit as provided by the Intestacy provisions of the Succession Act 1981. The Government only has a windfall if you have no relatives and no Will – a most unlikely situation.
You and your spouse will have separate Wills, but after your death will your spouse re-marry or enter a de facto relationship, make another Will favouring the new partner who then outlives your former spouse and takes the whole of his/her Estate. What about your children and “their rightful inheritance”? You and your spouse can make Mutual/Contract Wills, i.e. Wills based upon an agreement never to revoke without the consent of the other. After your death your children can then contest any new Will based on a breach of contract and the Court can/may set it aside in favour of the old Will.
A de facto relationship can result in a partner’s entitlement to an adequate provision just as in a marriage and then there is the right to contest.
Step-children are now the lucky ones for they are also entitled to adequate provision not only from the Estate of their own parents but maybe also from the Estate of their step-parent providing the marriage between the parent and the step-parent is still subsisting when the death occurred even if the step-parent later re-married.
If a Will is made before marriage, it will be revoked upon marriage unless it is expressly stated to be made in contemplation of that marriage.
Upon divorce all references to your spouse in your Will are null and void – so you may consider there is no need for an urgent review of your Will. But what happens if you separate and then die before the commencement of property settlement proceedings? If you have already commenced proceedings, your Executor continues the action. But if you have not and your Will favours your spouse or if you own property jointly with your spouse, then he/she will take and who knows where your property will eventually end up. If the marriage has ended, you need a new Will immediately (and some Family Law advice too)!
And remember to constantly review your Will. Changes in relationships and property do occur.
How can we help?
When it comes to the law of Wills and Deceased Estates (Succession Law), this legal firm offers advice and services related to –
- Preparation of Wills
- Obtaining Grants of Probate
- Administering Deceased Estates
- Contesting Wills
Consult this legal firm with nearly half a century of knowledge and experience first and get it right!
Need help with the law?
If you need a Lawyer for anything to do with Wills and Estates or have an enquiry about any other legal matter, contact the contact G. R. Brown Solicitor and Notary Public between 8.30am and 5.00pm Monday to Friday by visiting the office at Suite 5, Sandgate Arcade, cnr Brighton Road and Second Avenue, Sandgate, Qld 4017 or by telephoning on 07 3269 8511 or emailing firstname.lastname@example.org .