INTRODUCTION A Will is a legal document that outlines the distribution of a person's assets after death and must meet specific legal requirements to be considered valid. In Queensland, a Will must be in writing, and the testator must sign the Will in the presence of two witnesses who then also sign. A Will that does not meet these legal requirements can be declared invalid. There are also other circumstances which can render a Will invalid. For example, a Will can be challenged and varied, or even invalidated by the Court because of undue influence, fraud or forgery, or lack of testamentary capacity or testamentary intention. In these instances, the Court will then consider the evidence presented and decide based on the case's merits. If the Court finds in favour of the individual disputing the Will, it may order that the Will be set aside or varied to reflect the deceased's true intentions. The Court may also request that costs be paid by the estate or the party responsible for the dispute. CIRCUMSTANCES ALLOWING A WILL TO BE CHALLENGED AND VARIED, OR INVALIDATED 1. Undue Influence Undue influence occurs when someone exerts pressure on the person making the Will, known as the testator, to create a Will that does not reflect their true wishes and is another way the validity of a Will can be challenged. If a beneficiary, caregiver, or family member coerces the testator into making a Will that benefits them unfairly, the Will could be invalidated by a court. 2. Fraud & Forgery Similarly, a fraudulent or forged Will can also be struck-out. A fraudulent Will is created by someone other than the testator, while a forged Will is a document that appears to be signed by the testator but is not. 3. Lack of Testamentary Capacity or Testamentary Intention The “testamentary capacity” of the deceased is also an essential requirement for a valid Will. For a Will to be valid the testator, must have the mental capacity to understand what they are doing by executing the Will. Accordingly, a Will could be deemed invalid if the testator lacked the capacity to understand the nature and consequences of their actions at the time that they made the Will. Importantly, the testator is presumed to have testamentary capacity unless the court is presented with compelling evidence to the contrary. Further, to be considered valid, a testator must not only have the testamentary capacity to make the Will, but the Will must also accurately reflect the testator’s expressed “testamentary intention”. The language in drafting a Will must be clear and precise, as ambiguity can lead to confusion and disputes. If the Court cannot interpret the testator's intentions from the language used in the Will, it may be invalidated. In other words, at the time of executing the Will, not only must the testator know what they are doing, they must have intention to create the Will and its consequences. Usually, when the validity of a Will is challenged [...]

SOLICITOR OR PUBLIC TRUSTEE? A will is a legal document that details your final wishes and instructions for the distribution of your assets after your death. While a public trustee is a government-run organization that provides legal services to individuals, including the administration of estates, there are several reasons why you should consider instructing a Solicitor to draft your will and thereafter assist with the administration of the estate. Tailored to your specific needs: A will created by a Solicitor can be tailored to meet your specific needs and goals. This will ensure that your assets are distributed according to your wishes and that your family is taken care of after you're gone; Peace of mind: A will created by a Solicitor will be legally binding and can provide peace of mind that your assets and loved ones will be taken care of according to your wishes. The public trustee, on the other hand, may not have the same level of expertise or knowledge of your specific needs and wishes; Avoid potential complications: A well-drafted will can help avoid potential complications and disputes over the distribution of your assets. A public trustee may not have the same level of expertise or knowledge of the law, which can lead to mistakes or disputes; and Cost savings in the long run: While paying for a will may seem like an additional expense, it can actually save you money in the long run. A poorly drafted will or mistakes made by the public trustee can lead to legal battles and additional expenses, which can add up quickly. Australia has its own set of rules and regulations regarding the fees charged by public trustees for managing estates. In most cases, these fees are based on a percentage of the value of the estate, with a sliding scale based on the size of the estate. The exact fee schedule can vary depending on the state, so it's best to consult the specific guidelines for the state in question to ensure you do not incur any unnecessary fees & charges. Example of Fees In New South Wales the Public Trustee outline their schedule online for various services including drafting of a will, executorship, and deceased estate management. Often, beneficiaries of Public Trustee appointed estate matters have complained about excessive fees, long delays in settlement and poor communication. If you had a choice, which scenario would you choose? a) Engage the Public Trustee to draft a free will, knowing your beneficiaries may be subject to high fees and delays; or b) Draft a will through a Solicitor for a minimal fee, nominate the executor of your choice with minimal or nil fee and faster settlement. A Public Trustee drafted will may save you money initially but will ultimately be funded by your beneficiaries – Example below. Joe Citizen engaged the Public Trustee of NSW to draft a free will. The Public Trustee were noted as the Executors of the Estate. Joe sadly passes away the following year. [...]

Organ donations and transplants are far more important than you would think. Currently, only one in three Australians are registered to donate their organs and tissue after death, despite 69% believing that registering is important. This belief is very much founded as there are currently around 1,750 Australians on the waitlist for an organ transplant and 13,000 additional people on dialysis who need a kidney transplant. The wait-time for recipients on the waitlist varies in Australia between six months and four years, sometimes even longer. Despite this, a significant number of individuals believe that it is too difficult to become a donor or the process to become one takes too long. However, almost anyone in Australia can donate their organs and tissue, and it is not a complicated process.  Walk to End the Wait Initiative –  Gordon Rutty or Gordo to most people, is a passionate local Gold Coast resident who wants to raise awareness on the organ donation process in Australia. To increase awareness for organ donation in Australia, Gordo is participating in the "Walk to End the Wait" where he will walk 42 Kilometres for 14 Days, and in “The Orange Ball”, which will be held on Friday, 7 October 2022.  When asked about why he was passionate about this particular cause, Gordo stated that:  “Children with transplants have often experienced significant interruption to their schooling, sporting, and social life. They have missed out on team sports and the benefits of physical activity and sport. Transplant Australia helps these kids adapt to a life with a transplant and to focus on their physical wellbeing. At the World Transplant Games, they can meet other children who have a shared lived experience. Many of them get to take home a medal for ‘show and tell’. Your support will provide subsidies for up to 50 transplant children and their families from around Australia. The money will help them with registration, accommodation, travel, and uniform expenses to represent Australia.” These fundraising efforts are to celebrate children with transplants and their renewed life at the 2023 World Transplant Games in Perth.  For more information on Gordo’s mission, you can visit The Walk to end the wait webpage and the Gordon Rutty homepage. How to become a donor  In Australia, a person with capacity to make decisions for themselves can choose to donate their organs and tissue after death as long as they are over 18 and have recorded their consent with the Australian Organ Donation Register (AODR). However, if you are 16 or 17, you have the option to record your intentions to donate your organs and tissue with the AODR upon your death.  For more information on how to become an organ donor, you can visit The Australian Organ Donor Registry. When organs and tissue can be donated –  Deceased Donor –  For an organ and tissue donation to validly occur, it is essential that the deceased has legally died (i.e., brain death or cardiac death).  To be classified [...]

Missing the Original Will? What to do if you can only find an electronic copy or photocopy Normally, when a loved one has passed, the next of kin must locate the original Will (see our article on locating original Wills), so the named-executor can apply to the Queensland Supreme Court Registry to administer the deceased estate. However, what happens if the next of kin can only find an electronic copy or photocopy of the final Will? In these circumstances, the executor named under the Will can apply for a grant of probate and try to prove to the Court that the copy is a true copy of the final Will. A judge hearing the application must be satisfied that the copy is an accurate reflection of the deceased’s last wishes with respect to a number of factors, such as: Whether the deceased actually intended this to be their final Will; Whether the original Will was deliberately destroyed by the Will maker during their lifetime;Whether the terms of the Will were clear; and Whether the original Will was validly executed, among other things. If satisfied, the judge can order that probate to be granted using the copy of the Will despite the original Will not being located. These types of application are not made too often, but applicants can be successful, such as in the recent case of In the Will of Valerie Eve Robson (deceased) [2020] QSC 52. Alternatively, the next of kin can decide to apply for a grant of letters of administration, which is the application made when someone dies without a Will, so that the estate can be administered pursuant to the rules of intestacy. Determining which course of action is best may come down to the content of the original Will vs. what will happen pursuant to the rules of intestacy. If any of these situations are applicable to you, please do not hesitate to contact our estates team to discuss prospects and next steps. Summary Should the original Will be lost and only a photocopy or electronic copy remain, the named-executor in that Will can still apply for probate, but they will only be successful if the presiding judge is satisfied that the copy of the Will reflects the true intentions of the deceased. Alternatively, the next of kin could apply for letters of administration. Legal advice should be sought if you find yourself in this situation. Our Services Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia. Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them.

Loved one passed away, what to do with their estate  Where a person passes way, they may leave behind a Will in which they state, among other things, what their beneficiaries receive and who they appoint as the executor.  The executor is responsible for administering the estate, which generally involves the executor gathering all the assets, paying any liabilities that the deceased still owes, and then distributing the remainder to the beneficiaries pursuant to the terms of the Will.  In most cases, to do this, the executor needs to obtain a grant of probate from the Court, which is done by way of an application with the original Will and death certificate.  So, after the death of a loved one, it is very important for the executor (usually the partner, child, or a close friend of the deceased) to obtain the original Will.  If the original Will cannot be found, feel free to check out our article on Missing Wills.  First things first, where can you find a Will? In an ideal world, a Will maker (also known as a ‘testator’) will tell their loved ones and proposed executor where they have stored their important documents, particularly their Will, so these can be easily found in case of an emergency or upon their death.  However, this does not always happen, and can lead to the Will becoming lost, usually because it is misplaced during testator’s lifetime, or the executor / family members cannot locate it.  Nevertheless, if the family members are unaware if the deceased even had a Will, the first step in trying to locate it is thoroughly searching the deceased’s home.  If this does not render results, there are a number of further steps that you can take to try to determine if find it or determine if one exists.  Finding the Original Will  If the deceased had legal representatives and / or accountants during their lifetime, the next of kin can contact these parties to confirm if they have the original Will, as it is common practice for law firms and accountants to hold original documents for their clients.  At the very least, a solicitor may be able to confirm if they drafted a Will for the deceased and whether they hold a copy.  If no luck there, the next of kin could also contact the deceased’s family and friends, their bank, the Queensland Law Society, and the Public Trustee regarding the existence of an original Will.  Ads can also be placed in the classified section of the local newspapers where the deceased lived asking for information about the Will.  Legal representatives can also be engaged to assist with this search.  A next of kin in this situation will probably be wondering, “how far do I have to go to figure out if there was a Will, if all my searching cannot find it?”.  At the end of the day, at law, the next of kin must take reasonable steps to try to locate the original [...]