Common Issues in Wills and Estates

Validity of the Will

One of the most common issues in wills and estates is whether the will is valid. For a will to be valid under Queensland law, it must meet the following requirements:

• The will must be in writing.
• It must be signed by the testator (the person making the will) or by someone else in the testator’s presence and at their direction.
• The signature must be witnessed by at least two people who are present at the same time and are not beneficiaries.

 
A will may be challenged if it does not comply with these formal requirements, or if there are concerns about the testator’s mental capacity at the time the will was made.
 

Testamentary Capacity

Testamentary capacity refers to the testator’s legal and mental ability to make a valid will. A testator must:

• Understand the nature of making a will.
• Be aware of the extent of their assets.
• Understand the claims that they should consider when making the will.

 
If there is doubt about a testator’s capacity, the will may be challenged.
 

Undue Influence

Undue influence occurs when someone pressures or manipulates the testator into making a will that does not reflect their true wishes.

If a person is coerced into changing their will, the affected portion of the will may be invalidated. Proving undue influence can be challenging, as the influence must be shown to be more than mere persuasion. Evidence of isolation or manipulation may be required.
 

Family Provision Claims

In Queensland, the Succession Act 1981 (Qld) allows certain people to make a claim on the deceased’s estate if they believe they have not been adequately provided for. Eligible claimants include:

• Spouses (including de facto partners)
• Children (including stepchildren and adopted children)
• Dependents

 
These claims, known as family provision applications, are common and can lead to estate disputes. The court will consider factors such as the size of the estate, the claimant’s financial position and the relationship between the claimant and the deceased when deciding whether further provision should be made.
 

Disputes Over Executors

The executor is the person appointed to administer the estate. Disputes often arise when beneficiaries believe the executor is not fulfilling their duties properly or is acting in their own interest.

Executors are required to act impartially, manage the estate efficiently and distribute assets according to the will. Failure to do so can lead to legal action for breach of fiduciary duty.

In some cases, beneficiaries may apply to the court to have an executor removed. The court will consider whether the executor is acting in the best interests of the estate.
 

Intestacy

Intestacy occurs when a person dies without a valid will, or their will does not cover the distribution of all their assets. In such cases, the Succession Act 1981 (Qld) outlines how the estate should be distributed. Typically, the estate is divided among the deceased’s closest relatives, starting with the spouse and children.

Intestacy can lead to disputes if family members disagree on how the estate should be divided.
 

Challenges to the Will

A will may be challenged on several grounds, including:

• Lack of testamentary capacity
• Undue influence
• Fraud or forgery
• Mistakes in the drafting or execution of the will

 
Challenging a will can be a complex and costly process, and courts are generally reluctant to overturn a will unless there is clear evidence that it is invalid.
 

Action

To avoid disputes and ensure your wishes are followed, it is important to:

• Seek legal advice when drafting a will to ensure it complies with the law.
• Regularly update your will to reflect changes in your circumstances.
• Clearly communicate your wishes to your family and loved ones.
• Appoint a reliable and impartial executor who will manage the estate efficiently.

 
If you are involved in a dispute over a will or estate, it is crucial to seek legal advice as soon as possible to protect your rights and interests.
 

Cases

McIntosh v McIntosh [2014] QSC 99

• In this Queensland Supreme Court case, the court dealt with an executor who acted in their own interest, rather than in the best interests of the estate. The case highlighted the importance of executors fulfilling their fiduciary duties.

Briginshaw v Briginshaw (1938) 60 CLR 336

• This High Court case is often cited in cases involving allegations of undue influence. It established the standard of proof required in civil cases where serious allegations are made, such as undue influence in will disputes.

Seeking Advice

If you are facing issues related to a will or estate, Gibbs Wright is ready to help. Whether you need assistance drafting a will, challenging a will or managing estate disputes, our team of experienced lawyers can guide you through the legal process. We will work to protect your interests and ensure a fair outcome.
 

Conclusion

Wills and estates law can be complex, and disputes often arise when people do not fully understand their rights and obligations. Ensuring that your will is valid, that your estate is properly managed and that your loved ones are provided for can help prevent future conflicts.

If you are dealing with any issues related to wills or estates, seeking legal advice is essential for protecting your rights and achieving the best outcome.