Visit Our
Main Site
Click Here
How to Make a Will in Queensland: The Definitive Guide by Aylward Game Solicitors
Planning for the future is more than just a legal box to tick; it is an act of care for those you leave behind. As an Accredited Specialist in Wills & Estates at Aylward Game Solicitors, I, Kauri Burgess, have spent nearly a decade guiding families through the complexities of Queensland’s succession laws. Whether you […]
How to Make a Will in Queensland: The Definitive Guide by Aylward Game Solicitors
Planning for the future is more than just a legal box to tick; it is an act of care for those you leave behind. As an Accredited Specialist in Wills & Estates at Aylward Game Solicitors, I, Kauri Burgess, have spent nearly a decade guiding families through the complexities of Queensland’s succession laws. Whether you are in Brisbane, the Gold Coast, or the Sunshine Coast, understanding how to make a will is the most critical step in protecting your legacy.
In this comprehensive guide, we will break down the legal requirements under the Succession Act 1981 (QLD), explore the nuances of how to make a will in Australia, and discuss why a DIY approach often leads to costly Death Bed litigation. From appointing executors to navigating the 28-day rule, this article provides the professional roadmap you need to ensure your final wishes are legally bulletproof.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
What is a Will?
A Will is a formal legal document that outlines exactly how you wish your assets and estate to be distributed after your passing. In Queensland, your estate includes everything from real estate and bank accounts to digital assets and sentimental heirlooms.
Beyond just who gets what, a Will allows you to nominate guardians for minor children, outline funeral preferences, and even provide for your pets. Without this document, you lose control over your life’s work, leaving your estate to be governed by the rigid formulas of the state.
What Makes a Will Valid?
For a Will to be recognised by the Supreme Court of Queensland, it must meet strict criteria. Under Section 10 of the Succession Act 1981 (QLD), a Will is not valid unless:
- It is in writing: While digital Wills are a burgeoning area of law, a physical, printed, or handwritten document remains the gold standard.
- It is signed by the testator: You (the person making the Will) must sign the document, usually at the foot of every page and at the end.
- It is witnessed correctly: Your signature must be made in the presence of at least two adult witnesses who are not beneficiaries.
Wills & Estates: 2026 Legislative & Tax Update
If you haven’t reviewed your Will in the last 12 months, your estate plan may be outdated. 2026 has brought major changes to how trusts are managed and how superannuation is taxed, impacting thousands of families in Brisbane and the Gold Coast.
1. The Trusts Act 2025 (QLD) – Effective 28 April 2026
The most significant shake-up in 50 years has arrived. The new Trusts Act 2025 officially replaced the 1973 legislation on 28 April 2026.
- Absolute Owner Powers: Trustees now have all the powers of an absolute owner, moving away from the restrictive lists of the past. This provides more flexibility but requires stricter oversight.
- Codified Duties: For the first time, trustee duties (acting in good faith, exercising care/skill) are explicitly written into Queensland law.
- Eligibility Tests: New restrictions prevent minors or insolvent individuals from serving as trustees. If your Will appoints a trustee, we must ensure they meet these new 2026 standards.
2. Division 296: The High Balance Super Tax (Starts 1 July 2026)
The federal government’s Division 296 tax is set to commence on 1 July 2026.
- The $3 Million Threshold: If your total superannuation balance exceeds $3 million, earnings on the portion above this limit face an additional 15% tax (totaling 30%).
- Impact on Wills: Because superannuation often bypasses the Will, you must review your Binding Death Benefit Nominations (BDBN) now to ensure your heirs aren’t hit with an unexpected tax bill upon your passing.
3. ATO Scrutiny on Inherited Homes (TD 2026/D1)
The ATO has tightened its grip on Capital Gains Tax (CGT) exemptions for inherited properties.
- Right to Occupy: Under the 2026 guidance, if you want a beneficiary to live in your home after you die without triggering CGT, that right must be explicitly granted to a named individual in the Will.
- The Discretion Trap: Giving an executor discretion to let someone live in the house is no longer sufficient to secure the full tax exemption.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
4. Digital Assets & AML/CTF Reforms
As of 31 March 2026, new Anti-Money Laundering (AML) laws require solicitors and executors to follow stricter identification protocols when dealing with high-value estate transfers. Your Will now needs specific clauses to address digital legacies, including cryptocurrency and encrypted data, to ensure executors can legally access these assets in accordance with 2026 privacy standards.
Comparison of Old vs. New 2026 Rules
| Feature | Old Rule (Pre-2026) | New Rule (2026 Update) |
| Trustee Powers | Limited to specific statutory lists | Powers of an absolute owner |
| Super Tax Rate | Flat 15% on earnings | Extra 15% for balances > $3M |
| Trustee Eligibility | Minimal statutory restrictions | Strict insolvency/age checks |
| Inherited Home CGT | Broad occupancy allowed | Must be a specifically named right |
| Maintenance Limit | $2,000 for beneficiaries | Up to $100,000 (or half interest) |
Writing the Will: Core Elements
When considering how to make a will and testament, you must address four core pillars:
- The Revocation Clause: Explicitly stating that this Will cancels all previous Wills.
- The Appointment of Executors: Naming the individuals who will step into your shoes to manage the estate.
- The Distribution of Assets: Clearly defining specific gifts versus the residue (everything left over).
- The Attestation Clause: The formal statement at the end of the Will where the witnesses confirm the signing process.
Choosing Beneficiaries
Beneficiaries are the people or organisations (charities) that receive your assets. While you have testamentary freedom in Australia, you also have a moral and legal obligation to provide for dependents. In QLD, if you fail to provide for a spouse, child, or dependent, they may lodge a Family Provision Application under Section 41 of the Succession Act, which can lead to your Will being contested in court.
Appointing an Executor
The role of an executor is demanding. They are responsible for:
- Locating the original Will.
- Applying for a Grant of Probate.
- Paying off estate debts and taxes.
- Distributing assets to beneficiaries.
At Aylward Game Solicitors, we often suggest appointing a professional executor or a younger, trusted family member to ensure longevity and capability.
Including Special Provisions
Expert estate planning goes beyond the basics. Under my guidance at Aylward Game, we often incorporate:
- Testamentary Trusts: To protect assets from a beneficiary’s potential divorce or bankruptcy.
- Special Disability Trusts: Ensuring long-term care for vulnerable family members without impacting their Centrelink entitlements.
- Digital Rights: Clauses allowing executors to access social media, crypto-wallets, and cloud storage.
Witness Requirements
In Queensland, witnesses must be over 18 and have full mental capacity. Most importantly, witnesses should not be beneficiaries (nor the spouse of a beneficiary). If a beneficiary witnesses a Will, the gift to them may be rendered void under Section 11 of the Succession Act.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Execution Procedure
The signing ceremony is where many DIY Wills fail. To ensure your Will stands up to scrutiny:
- Use the same pen for all signatures.
- Ensure you and both witnesses are in the same room, so you can see each other sign simultaneously.
- Avoid using paperclips or staples that leave marks, as this can suggest lost codicils (amendments) during the Probate process.
Legal Checklist for a Valid Will in Queensland
| Requirement | Description | Legal Provision (QLD) |
| Testamentary Capacity | The testator must be over 18 and of sound mind, memory, and understanding at the time of signing. | Common Law (Banks v Goodfellow) |
| In Writing | The Will must be a physical document, either handwritten, typed, or printed. | Section 10(2)(a) |
| Testator’s Signature | You must sign the Will (or acknowledge your signature) in the presence of witnesses. | Section 10(2)(b) |
| Two Adult Witnesses | At least two people (18+) must witness your signature and sign the Will in your presence. | Section 10(2)(c) |
| Simultaneous Presence | Both witnesses must be present at the same time when you sign the document. | Section 10(3) |
| Disinterested Witnesses | A witness should not be a beneficiary or the spouse of a beneficiary, as the gift to them may fail. | Section 11 |
| Knowledge and Approval | The testator must know and approve the contents of the Will before signing. | Common Law |
| No Marks or Clips | Avoid using staples or paperclips that leave indentations, as this can suggest missing pages. | Probate Best Practice |
Custody of a Will
Once your Will is signed, where should it go? A Will serves no purpose if it cannot be found. At Aylward Game Solicitors, we offer secure, fireproof storage. We provide you with a copy, but the original, which is required for Probate, is kept in a safe place. Never keep your Will in a bank safety deposit box that cannot be accessed until Probate is granted; it creates a Catch-22 for your executor.
What Happens if You Die Without a Will?
Dying Intestate means your assets are distributed according to the Intestacy Rules in Part 3 of the Succession Act.
- If you have a spouse and children, the spouse receives the first $150,000, all household chattels, and a portion of the remainder.
- The State (Crown) only receives your estate if you have no living relatives, including distant cousins.
- However, the legal costs of managing an intestate estate are significantly higher than the cost to make a will now.
Who Makes Sure Your Wishes are Carried Out?
This falls on your Executor. If no Executor is named or they are unable to act, the court will appoint an Administrator (usually the next of kin) via Letters of Administration. This process is often slower and more stressful for grieving families.
Can You Change Your Will?
Yes, provided you have the mental capacity to do so. You should never mark up an existing Will with a pen. Instead, you should:
- Make a Codicil: A formal amendment.
- Make a New Will: Generally, the safer option to avoid confusion.
What Happens if You Marry or Divorce?
In Queensland (Sections 14 & 15 of the Succession Act):
- Marriage: Revokes your Will entirely unless the Will was made in contemplation of marriage.
- Divorce: Does not revoke the whole Will, but it revokes any gift to your former spouse and removes them as an executor.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Who Can You Leave Your Assets To?
You can leave assets to anyone, but you should be aware of superannuation. Super does not automatically form part of your Will. You must sign a Binding Death Benefit Nomination (BDBN) with your super fund to ensure it goes to your intended recipient.
International Wills
If you own property overseas, you may need an International Will. Australia is a party to the Convention Providing a Uniform Law on the Form of an International Will 1973. As an expert team, Aylward Game Solicitors can help coordinate your global assets.
How Can a Solicitor Help?
While people often search for how to make a will legal without a lawyer, the risks are immense. A solicitor like myself, Kauri Burgess, provides:
- Asset Protection: Strategies to shield your estate from tax and litigation.
- Clarity: Preventing ambiguity that leads to court battles.
- Peace of Mind: Knowing your Will is stored safely and drafted to current legislative standards.
Frequently Asked Questions About How to Make a Will
1. Can I write my own will in Australia without a lawyer?
Yes, it is legal to write your own Will. However, DIY Wills are the most frequently contested documents in Queensland courts. Small errors in wording or witnessing can lead to the Will being declared invalid, costing your family thousands in legal fees later.
2. What is the easiest way to prepare a will?
The easiest and most secure way is to consult a specialist solicitor. While easy might look like a $30 kit, the easiest experience for your family after you pass is a professionally drafted Will that moves through Probate without hitches.
3. How much does a good will cost?
The cost to make a will varies. A simple Will might cost a few hundred dollars, while complex estates with trusts and corporate structures require more investment. At Aylward Game Solicitors, we offer transparent pricing tailored to your specific needs.
4. What are common will making mistakes?
The biggest mistakes include: failing to update the Will after marriage, failing to name back-up executors, using loose language (e.g., I give my money to my friends), and failing to account for superannuation or joint tenancies.
5. Are will kits from Australia Post legal?
Yes, they are legal documents, but they are static. They cannot provide legal advice on your specific family dynamics, tax liabilities, or the nuances of how to make a will QLD law requires for complex assets.
6. What is the cheapest way of doing a will?
A DIY Will kit is the cheapest upfront. However, the cheapest total cost often comes from a lawyer; spending a bit now prevents the expensive disaster of an estate dispute that can swallow 10%-20% of your total assets in legal fees.
7. What are 4 types of wills?
The four common types are: 1. Simple Wills (straightforward distribution), 2. Testamentary Trust Wills (for asset protection), 3. Joint Wills (made by two people), and 4. Living Wills (focused on medical directives).
8. What is the 28-day rule in wills?
Under Queensland law, a beneficiary must usually survive the deceased by 28 days to inherit. If they pass away within that window, the gift typically lapses and follows the residue instructions or goes to the next beneficiary.
9. What is the biggest mistake in drafting a will?
The biggest mistake is procrastination. Many people wait until a significant event to make a Will, but by then it may be too late due to a loss of capacity or a sudden passing.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Why Choose Aylward Game Solicitors?
At Family Law Aylward Game Solicitors, we are more than just legal technicians; we are your partners in legacy. Serving Brisbane, Gold Coast, and the Sunshine Coast, our firm combines decades of cumulative experience in Family Law, Property Law, and Estates.
I, Kauri Burgess, bring a unique background in mining and aviation to my legal practice, allowing me to understand the complexities of high-value asset portfolios and diverse industry risks. Whether you are dealing with a Divorce Property Settlement, Child Custody matters, or simply need a robust Estate Plan, our team provides a holistic approach that aligns with your life goals.
Contact us today to schedule a consultation:
- Phone: 07 3236 0001
- Email: mail@aylwardgame.com.au
- Visit Us: familylaw.aylwardgame.com.au
Locations: Brisbane | Gold Coast | Sunshine Coast
SHARE THIS