Wills & Estate Planning

Making a valid, up-to-date will is one of the most important things you can do to protect the people you love — and it is especially important when your family circumstances change through separation, divorce, a new relationship or the arrival of children. At Bruce Dulley Family Lawyers we help Brisbane clients prepare wills and plan their estates, with particular attention to how family law and relationship changes affect what happens to your assets.

A will is a legal document that sets out how you want your assets distributed after your death and who you want to administer your estate (your executor). If you die without a valid will — known as dying "intestate" — your estate is distributed according to a fixed statutory formula under Queensland's succession laws, which may not reflect your wishes at all. Intestacy can leave assets to people you would not have chosen, can exclude people you intended to provide for, and almost always makes the administration of your estate slower, costlier and more stressful for your family. A clear, properly drafted will avoids these problems.

A sound Will does more than name beneficiaries. It appoints an executor you trust, can establish testamentary trusts to protect assets for children or vulnerable beneficiaries, can provide for guardianship considerations for young children, and can be structured with an eye to tax effectiveness and asset protection. We take the time to understand your family, your assets and your concerns so that your Will does what you actually want it to do.

Separation and divorce make reviewing your will urgent. Many people do not realise that the legal effect of marriage and divorce on a will can be significant. In Queensland, marriage generally revokes a will (unless the will was made in contemplation of that marriage), and divorce generally revokes any gift to, and any appointment of, a former spouse. But here is the trap: separation alone — before a divorce is finalised — usually does not change your will at all. That means if you have separated but not divorced, and you die, your existing will leaving everything to your estranged spouse may still operate exactly as written. Equally, your former partner may still be your nominated executor or beneficiary. For anyone going through separation, reviewing and updating your will should be an immediate priority.

It is also important to understand that not all of your assets pass under your will. Superannuation and life insurance are typically dealt with separately, often by a binding death benefit nomination made to your superannuation fund, and assets owned as joint tenants pass automatically to the surviving owner regardless of your will. Effective estate planning coordinates all of these, so that your superannuation nomination, your property ownership structure and your will all point in the same direction. After a separation, your superannuation death benefit nomination — which may still favour your former partner — is something we will always prompt you to revisit.

You should also be aware of family provision claims. In Queensland, certain people — including a spouse, de facto partner, child or dependant — can apply to the court for provision (or further provision) from an estate if they believe they have not been adequately provided for under the Will. A current or former spouse can sometimes fall within this category. Good estate planning takes the possibility of such claims into account and structures your affairs to reduce the risk of a dispute after you are gone.

We are experienced litigators who can act for you in any estate-related litigation. We have experience with family provision litigation, challenging the capacity of a will maker and estate administration issues.

We recommend that everybody has an Enduring Power of Attorney (EPOA) for their financial and health matters. An EPOA enables another person to make decisions about your financial and health matters on your behalf. In some cases it is appropriate for this power to commence immediately but usually the power commences when a person can no longer make their own decisions. Typically, the attorney is a spouse but can be a trusted friend or relative.

Because we practise in family law every day, we see how relationship breakdown and estate planning intersect, and we can advise you on both together. Whether you need a straightforward Will or an update after separation or a more sophisticated estate plan, we will make the process clear and straightforward. Every family law matter is different. The information on this page is general only and is not legal advice. To discuss your situation in confidence, request a confidential consultation with our Brisbane family law team.