Charlotte, Author at Zande Law

Language and Legacy

10 December 2025 4:20 pm Leave a Comment

Aristotle once said, “let it be determined that the virtue of speech is clarity, for since language is a kind of sign, if it does not make the meaning clear, it fails to perform its function”. He recognised that each of us lives within our own inner world of experience, but language is the stage on which these inner lives are made visible to others.

This is no less true when it comes to making your Will. A Will expresses your wishes about how your estate is to be distributed, but it is the words themselves that have the ultimate authority in determining your intentions. Grammar is often an undervalued aspect of making sure your Will accomplishes your will.

A striking example of this is the effect that the choice of a “determiner” has on a gift. Determiners are the words we use to modify the thing we are talking about – words like “a”, “the” or “my”. Imagine you own a luxury watch and want to leave it to your grandson. Your Will states, “I give to my grandson a Rolex watch.” Because this wording does not point to your particular Rolex, the law may treat it as a general gift. This means that if you sell or lose your Rolex during your life, your executor could be required to purchase another Rolex to fulfil the gift – an expensive obligation you may not have intended.

By contrast, using “the” or “my” usually signals that you are referring to a specific, identifiable item. For example, “I give to my grandson my Rolex watch” indicates that you intend to gift the particular watch you own. Such wording is more likely to create a specific gift, tied to that precise piece of property. If it no longer exists at the time of your death, the law assumes you intended to revoke the gift, and it simply fails. Precision, therefore, has real financial consequences.

To echo Aristotle: the virtue of a Will is clarity, and an unclear Will risks failing to do what you intended it to do. With much turning on how your Will is written, we strongly encourage you to seek legal advice to ensure your property is distributed exactly as you intend.

Noah Smith, Law Student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

Next Article: Interpretation of Unclear, Ambiguous or Vague Wills

Interpretation of Unclear, Ambiguous or Vague Wills

12 November 2025 2:53 pm Leave a Comment

When a person passes away, their Will is meant to clearly express how they want their estate to be distributed. However, sometimes the wording of a Will is unclear, ambiguous, or confusing. In these situations, courts in Queensland may apply a legal principle known as the armchair rule to determine the intention of the person who made it (‘the testator’).

The armchair rule allows a court to interpret a Will by putting itself in the position of the testator at the time it was written. The court looks at the circumstances that were known to the testator, such as their personal relationships, their assets, and their general life situation.

This approach helps the court understand what the words in the Will were likely meant to convey, rather than focusing only on their dictionary definitions. The purpose is not to rewrite the Will, but to give effect to the testator’s true intentions.

The armchair rule is usually applied when:

– The Will contains vague or inconsistent terms;

– There is more than one possible interpretation of a word or phrase;

– The identity of a beneficiary or item of property is unclear; or

– A relationship or asset mentioned in the Will has changed since it was written.

For example, if the Will refers to “my house” and the testator owned multiple houses, the court may consider what property the testator commonly referred to as “my house” when the Will was made.

In doing so, the court may look at:

– The testator’s family relationships and friendships;

– The nature and location of the testator’s property;

– Any personal circumstances known to the testator at the time; and

– Letters or notes that provide context to the Will (although these cannot override it).

The court will not usually accept evidence of what the testator said they meant, unless the wording is clearly uncertain.

If a Will is unclear, the armchair rule allows the court to interpret it fairly and in line with the testator’s likely wishes. It is one more reason why Wills should be drafted carefully, with professional legal advice.

Noah Smith, Law Student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

Next Article: Binding Death Benefit Nominations & Estate Planning

Binding Death Benefit Nominations & Estate Planning

22 October 2025 11:44 am Leave a Comment

When planning for the future, many people focus on making a Will to ensure their assets go to the right people. However, superannuation is often overlooked, and is not automatically covered by your Will. In Queensland, and throughout Australia, your superannuation is managed by a super fund, and that fund has discretion over who receives your death benefit unless you have a binding death benefit nomination (‘BDBN’) in place.

A BDBN is a legal document that tells your super fund who you want to receive your superannuation benefits when you die. If it is valid and current, the super fund is legally required to follow your instructions. This gives you greater control over where a significant portion of your wealth will go.

You can only nominate certain people to inherit your super under a BDBN:

– Your spouse or de facto partner;

– Your children (of any age);

– Someone who is financially dependent on you;

– Someone with whom you have an interdependent relationship;

– Your legal personal representative (usually the executor of your Will).

Nominating someone outside these categories may make the nomination invalid.

Without a BDBN, the trustee of your super fund decides who gets your super, often choosing between your dependants or your estate. This can lead to delays, disputes, or unintended outcomes.

However, there are some important factors to note:

– Expiry: Many BDBNs expire after three years, unless your fund allows for non-lapsing nominations. It is important to review and renew them regularly.

– Form and Signing: BDBNs must be completed on the correct form, signed in front of two witnesses, and submitted to the fund.

– Estate Planning Integration: BDBNs should be reviewed alongside your Will and other estate planning documents to ensure everything works together.

Superannuation can be one of your largest assets. A valid binding nomination ensures it is distributed according to your wishes and can help prevent family disputes. For a complete and effective estate plan, it is essential to consider how your superannuation will be dealt with and to seek legal advice if you are unsure.

Madeline Crnkovic, law student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

Missing Beneficiaries

15 October 2025 10:00 am Leave a Comment

When it comes to administering entitlements under a Will, the executor or administrator has a duty to make reasonable attempts to locate beneficiaries and distribute the estate accordingly. But what happens if a beneficiary cannot be found?

In the event of a missing beneficiary, Executors can make an application to the Court seeking a Benjamin Order. This allows an Executor to distribute the assets within an Estate when a beneficiary cannot be located. The Order allows for the Estate to rely on a presumption that where there has been no contact and all reasonable attempts to locate the beneficiary have failed, that the beneficiary has died and their share can instead go to the next entitled person.

This runs contrary to conventional practices of establishing death; a Benjamin order does not require evidence proving that the beneficiary has deceased – it simply requires an absence of evidence that suggests the beneficiary is alive.

It is worth noting that the successful application for a Benjamin order does not prevent that beneficiary (if ever located) from claiming their testamentary entitlement. The beneficiary is able to make a claim up to 12 years from the date of the Will makers death, however it protects the Executor from any personal liability distributing the Estate in the circumstances.

Any attempt to apply for an order requires the administrator to prove that they have made all necessary and reasonable attempts to locate the individual. Inquiries can be made through family members, electoral rolls, phone records, and with the registry of births, deaths and marriages. Facilities like private investigators and missing heir’s services are also available, however both can be costly and complex – especially if the estate is not substantial.

When making your Will it is important to give consideration to who you are appointing as your executor and beneficiaries and the risks of those persons losing contact. We recommend keeping a record of names and contact details of beneficiaries, and updating this regularly. Keeping this record with your Will and other important documents can also help your executors as they navigate the details of your Estate when you are no longer around. It can also help avoid additional legal costs being incurred.

Madeline Crnkovic, Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

Gifting to Charities in your Will

8 October 2025 10:00 am Leave a Comment

From cooking up snags at Bunnings, to volunteering at Surf Life Saving, to giving your pocket change to your local footy club, almost all Australians are involved in the community by volunteering our time and money. These charities often become an integral part of our lives and our communities. It’s not surprising that many people choose to leave something to their charity of choice in their Will.

Under law, you are able to direct your executor to give a gift for a fixed amount or percentage of your estate to any person or organisation, including a charity. This gift can be for the charity’s general purpose or for a specific service that the charity provides for the community. For example, you can leave money to the local football club for its general purpose or for only purchasing new equipment.

However, the time between when you prepare your Will and when you die may be several years, and the circumstances of charity organisations you nominate may significantly change. They may change the type of organisation they are, including the type of charity they provide, or may stop operating all together. If a gift to a charity cannot be carried out precisely, your executor may have to apply that gift cy pres.

Cy pres allows for the executor or a Court to modify the terms of a gift to a charity to ensure that the original intent of the gift is still met, even if the original purpose as described in your Will is no longer possible or practical.

Zande Law has managed this very situation in a past matter – in her Will a client had gifted her residential property to a specific charity dedicated to housing adults with disabilities. At the time of her death, the charity, while still operational, was not engaging in any charity work in the community and was essentially an empty organisation. The executor made a successful application to the Court to have the property given to an active charity in the community that provided housing to adults with physical disabilities.

If you require advice for leaving gifts to charities in your Will please contact Zande Law to arrange for an appointment.

Bader Pendergast-Lee is a Solicitor at Zande Law, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, practicing in the areas of Wills, Estates and Family Law. If you need legal advice in relation to your Will or a deceased estate matter, we encourage you to make an enquiry with our office.

Next Article: Divorce – Who Keeps the Pets

No More ‘Buyer Beware’

17 September 2025 12:51 pm Leave a Comment

Selling your home is known as being a highly stressful time in a person’s life. Dealing with factors such as emotional attachment to the property, high financial stakes, and thinking about what repairs need to be made before you should even put your property on the market can be very overwhelming – often leading you to forget important requirements and even overlook the liability you hold as a seller.

On the contrary, buying a home also comes with several risks. Unforeseen structural damage or defects, legal and regulatory compliance, and contracts unexpectedly falling through are all details you need to be aware of before you sign that contract and go unconditional.

The new Seller Disclosure Scheme established under Queensland’s new Property Law Act 2023 (Qld) means that sellers are now required to prepare a ‘Seller Disclosure Statement’ based on specific searches conducted on their property, and a ‘Contract and Property Report’ which explains the results of those searches in detail.

The new Seller Disclosure Statement requires sellers to provide the buyer with the following:

– Current title search;

– Unregistered encumbrances, easements, or caveats;

– Zoning and planning restrictions;

– Rates and water charges;

– Flood history and past disputes; and

– Any other facts that might influence a buyer’s decision.

The Seller Disclosure Statement aids in relieving the above-mentioned concerns and provides multiple benefits for both parties.

Benefits for sellers:

– Reduces the risk of contract termination, litigation and financial loss; and

– Increases trust and transparency with potential buyers.

Benefits for buyers:

– Right to terminate contract up until settlement date if the seller does not provide the Seller Disclosure Form; and

– It is now the seller’s responsibility to conduct the appropriate searches and disclose any critical details (no more “Buyer Beware”).

By disclosing information early, it allows for the buyer to come to an informed decision about whether they would like to proceed with the contract -rather than signing the contract prematurely and discovering issues later during the conveyance. However, our clients can rest assured knowing that the new Seller Disclosure Statement requirements protect both sides of the conveyance, and that our team can assist with ensuring their purchase or sale goes smoothly.

Olympia Kemp-Upton, Conveyancing Assistant at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Conveyancing.

Next Article: Divorce – Who Keeps the Pets

Divorce – Who Keeps the Pets

27 August 2025 2:28 pm Leave a Comment

Most pet owners freely consider their furry, feathery or even scaly friends to be ‘part of the family’ to a point even where many instinctively refer to their pets as children. But who gets ownership of the family pet if its owners divorce or experience a relationship breakdown?

Under the Family Law Act 1975 (Cth), the ongoing care of children to a relationship is carefully managed by an extensive array of provisions designed to ensure that the best interests of those children are met. Australian law however, considers pets to be just another form of property. Therefore, the working out of where little “Fluffy’ is going to live is done in the same was decisions are made about the family car and the living room couch.

A Family Court Judge has the authority to make orders to protect property from waste, destruction or damage. On those few occasions where pet custody cases have ended up in court, the desicions in each instance considered:

– Who is the registered owner;

– Who paid for the initial and ongoing expenses;

– Who was the main caregiver during and after the relationship;

– Whether the parties will have appropriate accommodation for the pet; and

– If there are parenting arrangements for children, whether the children have a special attachment to the pet.

A Judge is therefore not strictly bound to consider the animal’s wellbeing except where a pet might be subject to violence or some other cruelty.

Alternatively, a couple could make a binding ‘pre-nup’ financial agreement outside of Court that specifies which partner will obtain sole custody of the pet in the event of a relationship breakdown. Since pets are legaly property, there should be no reason why a Family Court Judge would not enforce the Agreement if the couple were to separate at some point in the future.

Regarding informal shared custody arrangements, it is unlikely that a Family Court Judge would make or enforce an order for shared custody due to the need for ongoing legal intervention. Nevertheless, it could be justified where a child to the relationship has a service or emotional support animal that needs to travel with the child between households. However, this is yet to be tested in court.

Joshua Noble is an Accredited Family Law Specialist at Zande Law located at Suite 3, Jade Chambers, 15 Middle Street, Cleveland. To contact Josh for advice, please phone (07) 3385 0999 to schedule an appointment.

The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

Next Article: Practical Suggestions for Avoiding Mistakes in Family Law Disclosure

Contact Us

Author Archives: Charlotte