Wills & Estates

Wills and estate law (or succession law) is an area of law that allows you to plan for the future and protect your loved ones. You can do this by making a valid will tailored to your circumstances, and by putting in place documents such as powers of attorney and advance health directives to ensure somebody you trust can manage your affairs and make health decisions for you if you are incapacitated.

If you have recently lost a loved one, you will need to administer that person’s estate, whether or not a will was left. We can help you through this difficult process.

Wills

A will is a formal document that allows you to record your wishes for the disposal of your possessions when you pass away. A will is important for every adult but is especially important for those with complicated family relationships or complex assets.

If you pass away in Queensland without a will (that is, you die intestate), state law determines who inherits your property. Generally, the law in Queensland divides the estate between the deceased’s spouse (if any) and their children (if any). While this distribution may mirror what a person would choose to do with their property anyway, it does not take into consideration any specific circumstances of the deceased. Administering an intestate estate is also more difficult, expensive and time-consuming for your loved ones.

What happens if you do not wish your estate to be distributed according to the “laws of intestacy”? For instance, you may want your spouse to inherit the whole of your estate, rather than having to sell assets to divide the estate with your children. Conversely, you may wish your spouse to receive a smaller proportion than your children, especially if you have been married for a brief period. These are questions that are personal to you, and a will is an instrument that allows you to formalise these decisions.

Family Provision Claims

The law in Queensland provides an avenue for someone to contest the decisions contained in a will. Basically, if an “eligible” person thinks that they should have received more from a will, they can make a family provision claim through the Supreme Court.

In Queensland, only the deceased’s spouse, child, or dependent are eligible to make a family provision claim. A “spouse” includes a de facto partner, and perhaps more surprisingly, a former spouse. This means that your ex-husband or ex-wife is an eligible person to contest your will. A “child” means a biological, adopted, or step- child. The final category is the most difficult to define, because a “dependent” includes anyone who depended financially on you. This means that a more distant relative or friend can contest your will, if they can establish financial dependence.

If you plan to make a family provision claim or are the executor of an estate upon which a claim has been made, we recommend seeking urgent legal advice.

Farm Succession

A farm is a particularly complex asset to include in your deceased estate. In most cases, the farm itself is a valuable asset that is essential to conducting the business of farming. This makes it difficult to pass on a farm as an ongoing business, especially if the farm constitutes the only significant asset of the family.

At one time, this challenge was resolved by passing on landholdings to the oldest (or most capable) son, with other sons perhaps working on the land or set up with smaller enterprises. Daughters traditionally received a lesser inheritance that would not reduce the viability of the farm. However, times have changed, and there is a social and legal expectation that parents will treat their children fairly in their testamentary arrangements. If a will is set up according to the traditional approach, a court may overrule the decision and order that the farm be sold, and the proceeds distributed fairly among the beneficiaries.

If passing on your farm to the next generation is important to you, you can take steps to manage farm succession. It does require you to begin your estate planning well before the farm transfers to the next generation, with a focus on open communication and realistic expectations. As with any other family-owned business, the enterprise will benefit if everyone knows what to expect and there is a smooth transition when the time comes.

The starting point for this communication is your own plans for retirement. You should consider when you will retire, whether you want to stay involved in the running of the farm in some capacity, how will you fund your own retirement.  Once you have a plan, you can consider who will take over the business of the farm and how the asset of the land will be handed down. This is likely to involve some difficult conversations, but an independent facilitator or business advisor may be able to help you reach a consensus. A solicitor can help to ensure that any agreement you reach accounts for events that may change the plan – such as a death or divorce. A deed of family arrangement can offer a balance between certainty and flexibility.

Our experienced wills and estate lawyers have worked with families of varying dynamics and wealth and can assist you to prepare an estate plan suited to your needs. We can help with:

• Simple and complex wills including wills with testamentary trusts
• Powers of attorney
• Advanced health directives
• Farm succession planning (including intergenerational property transfers)
• Grants of probate and letters of administration
• Estate administration
• Family provision claims

If you need assistance, contact one of our lawyers at [email protected] or call 07 4063 5900 for expert legal advice.