wills Archives | 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

Freedom of the Will?

16 July 2025 12:21 pm Leave a Comment

Eleanor Roosevelt once remarked that ‘with freedom comes responsibility.’ Humans are rightfully pre-occupied with freedom. The ability to choose for oneself unfettered by the constraint of another is a vital foundation for identity, self-expression, and diversity. But what is the place of freedom when it comes to how our assets are distributed when we die? How free is our Will?

For quite some time absolute freedom to choose how your estate was distributed was the norm. The unqualified power to give property away in life or in death was simply the flipside of ownership. Naturally though testators routinely disinherited those who depended upon them, no matter the cruelty or injustice.

This was at least until the law offered a protection, culminating in what is now sections 40-44 of the Succession Act 1981 (Qld). These empower a deceased’s spouse, child or dependant (including de facto, civil partnerships, stepchildren and adopted children) to apply to the Court if adequate provision for their proper maintenance and support has not been made. This application must be brought within 9 months of the deceased’s death.

Generally, the application turns on what constitutes ‘adequate provision’ and ‘proper maintenance and support’. In essence, these sections recognise that familial relationships attract certain responsibilities. The Court will put itself in the position of ‘testator’ and consider what a wise and just person would have done factoring in all the circumstances. This means that in assessing family provision claims context is king; what may be adequate provision in one case, may not be in another.

When it comes to making Wills in Queensland, freedom brings responsibility. If you intend to cut out or reduce the entitlements of your spouse, child or dependant we encourage to seek legal advice about how this might affect your Will.

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: Choosing Between Parenting Plans and Consent Orders

Dying Intestate

11 June 2025 1:23 pm Leave a Comment

We often hear people say they “don’t need a Will” and in cases like One Direction’s Liam Payne, there are instances where people just never got around to preparing one. If someone does pass away without a Will (known as intestate), their assets are distributed according to the strict formula as set out within the Succession Act 1981 (Qld).

The Succession Act outlines that the Estate is distributed:

1. If the deceased had a spouse but no children – to the surviving spouse 100%

2. If the deceased had a spouse and children – the surviving spouse receives $150,000, the household chattels and 1/2 or 1/3 of the residue depending on how many surviving children.

3. If the deceased had no spouse but had children – to the surviving children equally.

4. If the deceased had no spouse and no children:

a. To their parents; then

b. To their siblings and nieces and nephews; then

c. To their grandparents; then

d. To their aunts and uncles and cousins.

5. If the deceased had no living ‘next of kin’ – to the Government 100%.

As can be expected, the laws of intestacy do not always match the intentions that people have for their assets or the support they want to leave to their friends and family upon their passing. In some cases, the laws of intestacy may cause for particular assets to be sold that the deceased did not want to be sold to enable beneficiaries to receive their share.

Additionally, the question then becomes, who actually administers the estate? In the case of intestacy, the position of ‘Administrator’ is open to any family members who are willing and prepared to take on the role. Procedurally, they must then apply to the Supreme Court of Queensland for a Grant of Letters of Administration formally appointing them as Administrator. As can be expected, this additional step and the time taken to ascertain the valid beneficiaries may result in the costs of administering the estate to be significantly larger and for the process to take longer.

Bethany Bellion, Solicitor at Zande Law Solicitors, 9/15 Discovery Drive, North Lakes and 3/15 Middle Street, Cleveland, is the author of this article, practising in the areas of Wills, Estates and Family Law.

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Tag Archive: wills

Language and Legacy

Interpretation of Unclear, Ambiguous or Vague Wills

Binding Death Benefit Nominations & Estate Planning

Missing Beneficiaries

Gifting to Charities in your Will

Freedom of the Will?

Dying Intestate

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