Common Will Drafting Errors in Queensland: How to Avoid Invalid Wills

Disclaimer: The following article is for general educational purposes only and does not constitute legal advice. Laws regarding will drafting can vary, and every estate is unique. If you reside in Queensland (or have assets across multiple jurisdictions), consult a qualified solicitor to ensure your will is valid and clearly expresses your wishes.

A well-prepared will ensures your estate passes smoothly to beneficiaries with minimal disputes. Unfortunately, numerous common mistakes can undermine a will’s validity or clarity—leading to confusion, partial intestacy, or costly legal challenges. Below, we examine frequent drafting pitfalls in Queensland wills, why they occur, and how to avert them.

The Importance of a Valid Will

In Queensland, a valid will typically requires:

• A testator (age 18+ and having testamentary capacity).
• A signed document, witnessed by two individuals present at the same time.
• Voluntary execution, free from undue influence.

Errors—like missing witnesses or contradictory clauses—might render the will partially or fully invalid. Proper drafting stops family disputes, ensures your final wishes stand, and reduces court intervention.

Common Will Drafting Errors

Below is a table summarising frequent oversights and their potential consequences:

Failure to Appoint or Update Executors

Multiple Executors or None

• No Named Executor: The court must appoint an administrator. This often delays probate.
• Choosing an Unsuitable Executor: If the executor is overseas or has limited knowledge, handling Queensland estate logistics may be complex.

Advice:

• Pick an executor who’s both willing and capable.
• Name a backup executor in case the first choice can’t serve.

Not Updating Executor After Life Changes

• If a spouse/executor divorces you, Queensland law might partially revoke references to them.
• If the executor dies or becomes incapacitated, your will is effectively missing a manager.

Tip: After any major life event, confirm the executor is still appropriate or alive.

Unclear Gifts and Contradictory Clauses

Ambiguous Descriptions

“I leave my ‘house’ to X” might cause issues if you own multiple properties. State explicit addresses or legal descriptions.

• If an asset is sold or replaced pre-death, references to the old item become irrelevant.

Solution: Use precise addresses, lot numbers, or share details, or rely on a residuary clause that covers all unspecified assets.

Conflicting Instructions

A will might say “My antique table to Sarah” but also “All furniture to my nephew.” Courts attempt to reconcile conflicts, but major contradictions could lead to partial intestacy.

Advice: Read your final draft carefully or have a solicitor cross-check. Consistency in describing who gets what prevents litigation.

Invalid Witnessing and Execution

Insufficient Witnesses

Queensland law demands two independent witnesses, both present at signing. Pitfalls include:

• Only one witness signing.
• Witnesses signing at different times or in separate rooms.
• A main beneficiary acting as witness (which can create suspicion or partial forfeiture of that beneficiary’s interest, unless validated by the court).

Execution Errors

Failing to include the testator’s signature on the same page as witnessing lines or using e-signatures that Queensland courts might not accept. Physical, pen-and-paper signings remain the norm for standard wills.

Check: If in doubt, re-sign with correct formalities under solicitor supervision.

Overlooking Residue and Post-Distribution Clauses

No Residue Clause

A residuary clause ensures leftover or unmentioned assets (like newly purchased property or unanticipated windfalls) go to a specified person or group. Without this, unknown or changed assets could pass intestate.

Failing to Address Alternate Beneficiaries

“If beneficiary X dies before me, these assets revert to Y.” Without naming secondary recipients, the estate might partially fail, increasing potential for disputes or intestacy.

Advice: Always include a “catch-all” for assets not specifically listed and provide fallback beneficiaries.

Using Outdated or Non-Queensland Templates

Non-Compliant with Queensland Acts

Generic templates might omit referencing the Succession Act 1981 (Qld) or local property definitions. They may lack appropriate sign/witness lines or disclaimers about local law.

Result: Courts can interpret such wills if they fulfill “substantial compliance,” but the risk of partial invalidation rises.

Inheritance Laws Differ Interstate/Overseas

If your assets or primary residence straddle multiple regions, rely on a Queensland-based solicitor to ensure your will meets local standards. Possibly create separate wills for foreign property if needed, properly disclaiming overlap.

Scenario: A Will with Overlooked Errors

Situation: Dianne in Queensland drafts a basic will using an online template. She:

1. Names only one witness (her nephew, also a beneficiary).
2. Forgets to add a residue clause.
3. Mentions her “Gold Coast property,” but in reality, she owns two properties in that region—one in Labrador, one in Surfers Paradise.

Outcome: When Dianne passes:

• The single witness might invalidate or complicate the nephew’s inheritance.
• Assets not specifically named remain undistributed, leading to partial intestacy.
• The Surfers Paradise property’s ownership is ambiguous, sparking a family provision claim from other relatives.
• The nephew petitions the Supreme Court for clarity or an “informal will” approach, causing delays and legal fees.

Lesson: Proper witnessing, naming all properties, and including a residue clause would have avoided confusion and disputes.

9. Frequently Asked Questions

Q1: Do I always need a lawyer to write my will in Queensland?
Not mandatory, but strongly recommended if your estate is significant, your family situation is complex, or you want to avoid these common pitfalls. DIY can be cheaper short-term but risk more disputes.

Q2: My will references assets I sold years ago. Is it still valid?
The will remains valid, but those gifts “adeem” (fail to exist). To avoid confusion, revise your will after major asset sales or acquisitions.

Q3: Can a no-contest clause fix drafting errors?
No. No-contest clauses (forfeiture clauses) are rarely enforceable against legitimate claims or statutory rights. They don’t correct fundamental mistakes like invalid witnessing or missing residue clauses.

Q4: Do I need new witnesses if I just correct a small error by initialling it?
Yes, any amendment must follow Queensland’s formal requirements (signatures, witnessing) or else it might not stand. Usually, you either re-sign or create a valid codicil with correct witnessing.

Q5: How often should I review my will to catch potential errors?
At least every 2–3 years or after life events (marriage, divorce, new child, significant purchase/sale, death of a beneficiary). Regular reviews ensure your will remains updated and error-free.

Key Takeaways & Summary

1. Common Errors in Queensland wills include incorrect execution (improper witnessing), missing residue clauses, contradictory gifts, or naming assets you no longer own.
2. Sign + Two Witnesses: The bedrock of a valid QLD will. Overlooking this can lead to partial invalidation or court intervention.
3. Residue & Alternate Beneficiaries: Always designate who gets leftover or newly acquired assets—and name fallback heirs if your primary choices die or disclaim their inheritance.
4. Specific Asset Accuracy: Precisely name real estate and valuable items, especially if you plan to keep or replace them.
5. Regular Updates: Revisit your will after major life changes—divorce, marriage, births, or big asset transactions—to keep it relevant and consistent with your distribution goals.

By avoiding these drafting mistakes, you can safeguard your Queensland will from legal challenges, ensuring a smooth estate administration and minimal disputes among your intended beneficiaries.