A valid will ensures that a person’s final wishes are carried out correctly after they pass away. However, if a will is not executed properly in Queensland, it may be declared invalid, leading to legal disputes, delays, or intestacy. An invalid will in Queensland can cause major issues for beneficiaries, with assets potentially distributed under intestacy laws instead. Understanding the legal requirements and common mistakes can help prevent estate complications and ensure that a will is legally valid.
Legal Requirements for a Valid Will in Queensland
In Queensland, the Succession Act 1981 (Qld) sets out the requirements for a legally valid will. To be valid, a will must:
- Be in writing (either handwritten, typed, or printed).
- Be signed by the testator (the person making the will) or by someone else in their presence and at their direction.
- Be witnessed by two people, who must be present at the same time and sign the will in the presence of the testator.
- Be made voluntarily and without coercion.
- Be made by a person who has testamentary capacity (meaning they understand what they are doing and the impact of their decisions).
Failure to meet any of these requirements can lead to disputes and challenges in administering the estate.
Common Mistakes That Can Invalidate a Will
A will may be challenged if it does not comply with legal formalities. Common mistakes that could result in a will being declared invalid include:
- Improper Signing or Witnessing
- The will was not signed by the testator.
- The will was signed but not witnessed correctly (e.g., only one witness or witnesses signing at different times).
- A witness is also a beneficiary, which can raise concerns about undue influence.
- Lack of Testamentary Capacity
- The testator was suffering from a medical condition, such as dementia, that impaired their ability to make decisions.
- The testator did not understand the nature and effect of making a will.
- Undue Influence or Coercion
- The testator was pressured or manipulated into making certain provisions in the will.
- There is evidence that the testator’s decisions do not reflect their true wishes.
- Errors, Omissions, or Unclear Wording
- Missing pages or unsigned amendments can cause confusion.
- Vague or contradictory instructions may make the will difficult to interpret.
- Outdated wills that do not account for changes in relationships, assets, or the law.
What Happens if a Will is Invalid?
If a will is found to be invalid, it may not be followed, leading to the following scenarios:
- An earlier valid will is used – If a previous legally valid will exists, the estate may be distributed according to that will instead.
- The estate follows intestacy laws – If no valid will exists, Queensland’s intestacy laws will determine how assets are distributed, often not in line with the deceased’s original wishes.
- Legal disputes arise – Beneficiaries or excluded family members may contest the estate, leading to lengthy and costly court proceedings.
Can an Invalid Will Be Fixed?
In some cases, the Supreme Court of Queensland may accept a will that does not meet all formal requirements if it is satisfied that the document reflects the deceased’s true intentions. This is known as an informal will application. However, this process can be complex and requires strong evidence.
How to Avoid Problems with Your Will
To ensure that your will is legally valid and reduces the risk of disputes:
✔ Seek legal advice – A wills and estates lawyer can help draft a valid will and ensure it complies with the law.
✔ Follow proper signing and witnessing procedures – Always have two independent witnesses present when signing your will.
✔ Regularly update your will – Review your will after major life events such as marriage, divorce, or acquiring significant assets.
✔ Store your will securely – Keep your will in a safe place and let your executor know where it is stored. We offer free storage of your will and epoa documents in our safe if you wish.
Need Help with a Will Dispute? Contact Bennett Carroll Solicitors
Ensuring a will is properly executed is essential to avoid legal disputes and protect your loved ones. If you’re concerned about a will dispute, need help with estate planning, or want to contest an invalid will in Queensland, our experienced team can guide you.
At Bennett Carroll Solicitors, we specialise in wills, estate disputes, and probate matters across Brisbane, the Gold Coast, and the Sunshine Coast. Whether you’re preparing a new legally valid will, need help with intestate estates, or believe a will was not properly executed, our expert estate lawyers are here to help.
Call us today on 1300 334 566 for expert advice, or visit one of our offices in South East Queensland.
Offices: Brisbane (Stafford & Upper Mount Gravatt), Gold Coast (Mermaid Beach), Sunshine Coast (Birtinya).
✉ Email: info@bcglaw.com.au
Other Useful Links:
Lack of testamentary capacity or undue influence in making the will.
Application for a provision (previously called testator’s family maintenance).
Bennett Carroll Solicitors – Wills & Estates Legal Services
Bennett Carroll Solicitors – Estate Disputes & Litigation
Queensland Government – Intestacy Laws in Queensland
Supreme Court of Queensland – Applications for Informal Wills
