Last updated 26 September 2018
If a person wants their estate to be distributed in a particular way upon their death, a will is essential.
If a will is not made, the estate will be distributed according to the intestacy rules contained in the Succession Act 1981 (Qld) (Succession Act). The rules ensure a distribution of property, in certain proportions, to the relatives of the deceased person. Friends or charities do not receive property under the intestacy rules.
Who may make a will?
Anyone over the age of 18 may make a valid will, as long as they are of sound mind, memory and understanding. A person under 18 years of age can make a will in contemplation of marriage. In addition, a married person under the age of 18 may make a valid will (s 9 Succession Act).
A will must be made of the testator’s free choice and without pressure being exerted by anybody.
When very old persons wish to make or alter a will, the question of their mental capacity to do so may arise. Legal advisers taking and carrying out instructions from a very old person must be satisfied that the testator comprehends the nature of their actions and its effects.
The Supreme Court can authorise a minor (i.e. a person under the age of 18 years) to make, revoke or alter a will (ss 19-20 Succession Act). The court must be satisfied that the minor understands the nature and effect of the proposed will and the extent of their property, that the proposed will reflects the minor’s intention and that it is reasonable in all the circumstances.
The court can also make, revoke or alter a will for a person who does not have the mental capacity to make a will (s 21 Succession Act). The court must give leave before hearing the application (ss 22-23 Succession Act) and must then be satisfied that the proposal is or may be one that would be made by the person if they were to have capacity (s 24 Succession Act).
In either situation, if the court approves, then upon execution of the proposed will, it has the same legal status as any other will.