Make a will

Work in Progress April 2020

Wills in Queensland must be drafted and executed to fulfil the writing and execution requirements of section 10 of the Succession Act 1981 (Qld).


You must have testamentary capacity - this means you understand what you are doing generally in life, and have the ability to organise your personal affairs. Cases seem pretty clear that the courts will try not to interfere (too much) if all the facts and circumstances around your Will show you knew what you were trying to do, even if you didn't do it correctly.

These are some basic tips I offer with no liability. There is no exact format for a Will EXCEPT that it must be in writing, it must be signed by you and two witnesses, all at once, all on the same day as below.

  1. Do not just say "all my worldly possessions" or "all my money"

    No one can tell what that is. You're asking your executors (the person that administers your Will when you die) to try and audit your mess. Be clear what it is you are giving away, and where it is. Bank account numbers, names, people.

  2. Put the Will in a safe place

    Or make a digital copy.

  3. Specifically any car and superannuation (see below) should be separate from everything else

    It is important to include your car as a specific gift, because a car is not considered part of 'household chattels'. 

  4. Household chattels

    A good way to include anything else (except your car) in and around the house.

  5. Who next?

    If you give something to someone and they have died (since you wrote your will or even after you die but before your Will is read eg a car accident with related people), then who would you give the thing to next? and if that person died, who next? In Land Law they say 'no land without a lord' so make sure your land doesn't fall through a crack to the government! This is all a bit more tricky, but again, try to explain what you want to happen because this will help if there is any arguments after you die.   

  6. Very importantly when writing a Will, be very clear in your language. 

    Do not say words like "I hope", "I desire", "it is my wish", "in the understanding", "it is my belief" etc etc, these are prectory words and not clear enough. Say want you want, be very clear as if issuing a command. 

  7. Clear words to say like:

    "I appoint", "I leave", "I specifically give", "I leave on Trust to my executor to do/ for the purpose of", I leave on Trust to my wife for the benefit of our children" - it's all about construction.

    In all cases legal advice, or one can also say, good drafting will make your intentions clear.

The three certainties:

  1. Certainty of Object exactly who is to receive the thing you are giving away

  2. Certainty of Subject Matterexactly what the thing is you are giving away

  3. Certainty of intention -  Be specific you understand you are giving something away in your Will. 

A common mistake is to include superannuation in a Will, however that is not binding on your Executor. To make a binding nomination for your superannuation use the binding nomination form available from your superannuation provider. This nomination will last 3 years, before it needs to be renewed. Keep this up to date. By using this method, your superannuation avoids being included in your estate and is paid directly to the nominated beneficiaries in your nomination form. For example 75% to my wife, and 25% to my daughter.  This leaves your Will to attend to your house, land, car and other possessions.

 
Image by Giammarco Boscaro

How a will must be executed


(1) This section sets out the way a will must be executed.

(2) A will must be—

(a) in writing; and

(b) signed by—

(i) the testator; or

(ii) someone else, in the presence of and at the direction of the testator.

(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.

(5) However, none of the witnesses need to know that the document attested and signed is a will.

(6) The signatures need not be at the foot of the will.

(7) The signature of the testator must be made with the intention of executing the will.

(8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.

(9) A will need not have an attestation clause.

(10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will.

(11) If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.

(12) If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.

(13)This section does not apply to a will made under an order under section 21.

 

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