What Makes a Will Invalid in Queensland?

What Makes a Will Invalid in Queensland? A will can be rendered invalid in QLD if it fails to meet formal requirements, is created under undue influence, or the testator lacks testamentary capacity. 

Understanding the legal and technical pitfalls is crucial to ensure your final wishes are honoured. 

In Queensland, having a valid will is essential to ensure your estate is distributed according to your wishes.

Unfortunately, many people are unaware of the strict legal and technical requirements involved in preparing a will. Failing to comply with these rules may result in the document being deemed invalid by the court, creating confusion, delays, and unnecessary costs for your loved ones. 

In this article, we’ll explore the key factors that can render a will invalid in QLD, the importance of meeting will requirements in Brisbane, and what steps you can take to safeguard your estate plan. 

1. Failure to Meet Formal Requirements 

One of the most common reasons a will is deemed invalid in Queensland is the failure to comply with the formal requirements set out in the Succession Act 1981 (Qld). For a will to be legally valid, it must satisfy the following: 

• Be in writing (typed or handwritten). 

• Signed by the testator (the person making the will). 

• Signed in the presence of two witnesses who are both over 18 and are present at the same time. 

• Witnesses must also sign the will in the presence of the testator. 

Failure to meet even one of these conditions can render the will invalid. For instance, if the will is only signed by one witness, or the witnesses sign at different times, the court may reject it as non-compliant.

Using a solicitor helps to ensure that your will meets all legal formalities and reduces the risk of mistakes. 

2. Lack of Testamentary Capacity 

Another common reason for an invalid will in QLD is the lack of testamentary capacity. This refers to the mental ability of the testator to understand: 

• The nature of making a will and its consequences. 

• The extent of their property and assets. 

• The people who would reasonably expect to benefit from the estate. 

If the testator lacks capacity—due to age, illness, or mental impairment—the will may be contested. Disputes often arise in situations where the will was made or changed late in life, especially if there are significant changes that disadvantage certain family members. 

Medical evidence and solicitor notes are crucial in defending the validity of a will when capacity is questioned. 

3. Undue Influence or Pressure 

A will can be declared invalid if it is found that the testator was coerced or manipulated into including or excluding certain beneficiaries. This is known as undue influence. Indicators of undue influence may include: 

• Isolation of the testator from family and friends. 

• Sudden or drastic changes to the will. 

• A beneficiary taking the testator to appointments or arranging the drafting of the will. 

• Lack of legal advice or the presence of independent witnesses. 

Courts in Queensland take claims of undue influence seriously and may set aside a will if there is sufficient evidence. The burden of proof, however, rests on the person alleging the influence, and it must be more than mere suspicion. 

4. Fraud or Forgery 

Wills may also be declared invalid due to fraud or forgery. This could include: 

• Falsified signatures. 

• Altered contents without the testator’s knowledge. 

• A will created entirely without the testator's knowledge or consent. 

In such cases witness testimonies, and digital forensics may be used in court to verify the authenticity of the document. If fraud is proven, not only is the will set aside, but criminal charges may follow. 

5. Revocation of the Will 

Sometimes, a valid will becomes invalid because it has been revoked. In Queensland, a will can be revoked in several ways: 

• The testator creates a new will. 

• The testator destroys the will with the intent of revoking it. 

• The testator marries or remarries after the will is made (unless the will was made in contemplation of marriage). 

If a will is revoked and there is no replacement, the deceased is considered to have died intestate, meaning their estate is distributed according to intestacy laws—not their wishes. 

6. Ambiguity or Poor Drafting 

Even if a will satisfies the formal requirements, it can still be challenged if the wording is ambiguous or the intentions of the testator are unclear. Common drafting errors include: 

• Vague descriptions of assets or beneficiaries. 

• Conflicting clauses. 

• Failure to consider future changes (e.g., sale of property, birth of children). 

When disputes arise over interpretation, the court must step in to determine the testator’s intent, often relying on external evidence.

This process can be costly, time-consuming, and emotionally draining for beneficiaries. Working with an experienced solicitor can help prevent these issues by ensuring the language of your will is clear, precise, and legally enforceable. 

7. Inappropriate Witnesses 

In Queensland, a witness to a will must not be a beneficiary or the spouse of a beneficiary. While the will itself may not be entirely invalid, any gift left to a witness (or their spouse) may be void. This rule helps protect the integrity of the document and prevent undue influence or bias.

For example, if your daughter and her husband are witnesses, and your will leaves them a portion of your estate, their gifts may be forfeited unless the court is satisfied there was no undue influence. 

8. Informal or Homemade Wills 

Many people attempt to write their own will using templates or informal notes. While Queensland courts can recognise informal wills under certain circumstances, the process is complicated and fraught with risk. This often leads to contested estates, legal disputes, and increased costs.

It's far safer to ensure your will is drafted and executed in line with legal standards from the outset. 

9. Outdated Wills 

An outdated will may no longer reflect your current wishes or circumstances. Major life events that warrant updating your will include: 

• Marriage, divorce, or separation. 

• Birth or death of family members. 

• Acquisition or disposal of assets. 

• Change in relationships or financial situation. 

An outdated will can lead to unfair or unintended outcomes, including the exclusion of key loved ones. Regular reviews with your solicitor ensure your will remains relevant and valid. 

10. Conflict with Other Legal Documents 

Finally, a will can be undermined if it contradicts other legal arrangements, such as: 

• Superannuation nominations. 

• Joint ownership of property. 

• Trust structures. 

For example, superannuation is generally not part of your estate unless the trustee decides to pay it to your estate. A binding death benefit nomination ensures your super is paid to your chosen beneficiary. It’s important to align your will with your other legal and financial documents to avoid conflict or confusion. 

Protecting Your Will from Being Invalidated 

To avoid the risks associated with an invalid will in QLD, it’s essential to: 

• Get professional legal advice. 

• Ensure all formal requirements are met. 

• Confirm your testamentary capacity. 

• Update your will regularly. 

• Avoid DIY or template-based wills. 

A properly drafted and executed will provides peace of mind, protects your family, and ensures your estate is distributed exactly as you intend. 

Contact Drakos & Company Solicitors to Ensure Your Will is Valid 

Whether you're drafting your first will or reviewing an existing one, don’t take chances with your legacy. Speak to our estate planning lawyers today to ensure your will is legally sound and truly reflects your final wishes.