The trusts and estates practice ranges from routine wills to complex plans for large estates
to special comprehensive estate planning for young professionals and executives. .
OUR RANGE OF SERVICES
preparation of wills and trusts;
administration of probate and trust estates;
estate planning for the business owner;
charitable and deferred giving; and
representation of executors and trustees
For legal advice on any of the above, CONTACT:
Miranda Dellaway on 07 3248 0844
Bernie McGowan on 3248 0842
Kristin Unwin on 07 3248 0828
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who matter to you in life, and of providing peace of mind for both you and those you care about.
Drawing up a will ensures that your assets will be distributed in the correct manner, that a person
you trust is appointed to carry-out your wishes, and that other details such as funeral arrangements
are carried out as you would want.
In Queensland, if you do not have a written will your assets will be distributed according to the rules
established by an act called the Wills, Probate and Administration Act 1898. These rules are called
intestacy rules and apply when you die intestate ie without a will. Primarily, the rules set out how
your assets will be divided between family members. Basically, they work to exclude non-family
members and organisations you may have wished to leave money, and they apportion bequests
according to mathematical formulae.
The intestacy rules, therefore, will pay no heed to your wishes as to the division of your assets
between family members. Nor will the rules accommodate same sex relationships, non-family carer
relationships, ex-spouses, or perhaps that charitable institution you promised to leave money. So, if
you want to ensure your assets are distributed in the manner you deem most appropriate, a valid will
is the only way to do it.
While a will must be in writing to be valid, there is no legal requirement that a solicitor draw up your
will - anyone over 18 (or under 18 years if married) and of sound mind can have a will, and can
write it themselves. In many circumstances it is preferable, however, that a solicitor have input into
the writing of your will because it is easy to make a mistake. And if you make a mistake drawing up
your will, you might make the will invalid in its entirety (or in part), or you might give affect to a
distribution of your estate other than you intended.
It is particularly important that you have input from a solicitor if you have a large number of assets,
or you want to put complicated arrangements in place. A more complicated distribution of your
assets includes instances where you wish to give assets to a person or an institution ahead of your
immediate family, or where you want to give assets to a child (this could, for example, involve the
establishment of a trust).
If you are in a same sex relationship you should certainly have a will drawn up by an experienced
solicitor, because your partner will be excluded as a beneficiary by the rules of intestacy. While the
law has changed to allow that the intestacy rules cover de facto partners, a de facto relationship by
definition does not include same sex partnerships. If no will has been prepared, the only course for a
same sex partner is to consult a solicitor and take the matter to court. In some circumstances such a
course might be successful, but it takes a great deal of money and time to litigate and the easier
option is to arrange for a solicitor to draft a will in the first place.
If there is no will and there are no family members closer than a second cousin the intestacy rules will
not be able to distribute the assets at all. Instead, everything will automatically pass to the Crown.
Those who think they have a claim on the estate then need to apply to the Queensland government
for a share of the assets. This is a relatively lengthy and costly procedure avoided if a will exists.
under the Family Provisions Act 1982 (FPA).
To make an FPA claim you need to be an eligible person. Eligible persons are:-
a spouse including a de facto spouse and a person living in a domestic relationship
with the deceased at the date of death. That relationship can be a same sex
relationship
a child of the deceased
a former spouse of the deceased
a dependant person
A dependant person is a person wholly or partially dependant upon the deceased
who is a grand-child of the deceased or is or was a member of the household of
which the deceased was a member. This category may include persons related or
unrelated to the deceased including foster children and persons in a same sex
relationship.
In order for a Court to change a Will, it carries out a two stage process:
has the eligible person been left without adequate provision for his or her proper
maintenance, education and advancement in life.
if the answer is yes what provision if any should be made out of the Estate.
This is a complex area of law whether you are an applicant seeking provision out
of the Estate or the Executor dealing with a claim.