Succession Act 1981

The Act directly affects every person who dies leaving property in Queensland, whether testate or intestate. Testators are regulated by the formal and substantive rules in Part 2; a minor's will is invalid except in contemplation of marriage or under court order (s.9), while a person lacking testamentary capacity may have a will made on their behalf under s.21 if the court is satisfied the proposed will reflects what they would have done if capacitated (s.21(2)(b)(iii)). Spouses (including de facto partners meeting the two-year cohabitation test in s.5AA(2)(b)(ii), civil partners, and dependent former spouses under s.5AA(4)) are given priority in intestacy (Schedule 2), rights to elect to acquire the shared home (s.39A), and standing to apply for family provision (s.41(1)). Children, stepchildren (defined in s.40A so that the relationship survives the death of the natural parent if the marriage or de facto relationship subsisted at that parent's death), adopted children (s.5), and issue generally take under intestacy rules (s.36A) or may apply under s.41.

Dependants—parents, parents of a minor child of the deceased, or any person under 18 substantially maintained by the deceased (s.40)—have family provision rights, but the court must be satisfied that provision is proper having regard to the extent of prior maintenance (s.41(1A)). Personal representatives (executors, administrators, the Public Trustee) are vested with the entire estate from death (s.45(1)), must collect assets, pay debts in the statutory order (ss.56–61), distribute according to the will or intestacy rules, and are subject to duties under s.52 (inventory, accounts, prompt distribution, interest on legacies). They enjoy protection if they distribute after six or nine months without notice of claims (s.44(3)) or make early maintenance distributions under s.49A, but are liable as executors de son tort if they intermeddle without grant (s.54).

The Supreme Court is given plenary jurisdiction over grants, revocation, construction, rectification (s.33), dispensing (s.18), statutory wills (ss.19, 21), family provision (s.41), and variation (s.42). The registrar performs administrative functions, holds wills made under court order (ss.29–32), and executes statutory wills (s.26). Unincorporated associations, charities, creditors, and beneficiaries of powers of appointment are all affected by the interpretation and failure-of-gift rules in ss.33G–33Q. Foreign elements engage choice-of-law rules (s.33T) and recognition of foreign court-authorised wills (ss.33X–33Y). The Act binds the Crown (s.4(2)).

Personal representatives owe the core duties enumerated in s.52(1): to collect and get in the estate, administer according to law, exhibit an inventory and render accounts when required, deliver up the grant when required, distribute as soon as may be, and pay interest on general legacies at 8% from the first anniversary of death (or from a later date fixed by the will). These duties are enforceable by aggrieved persons under s.52(2), which permits the court to order damages, interest on funds in hand, and costs. The duty to distribute "as soon as may be" is qualified by the executor's year principle expressly preserved by s.52(1A).

Rights of personal representatives include the power to sell, mortgage or lease (derived from the Trusts Act 1973 via s.49(1)), to make early maintenance distributions to dependants under s.49A even within the 30-day survivorship period, and to seek commission under s.68. They may ratify acts done on behalf of the estate (s.54(3)) and are protected by s.53 when acting under a grant later revoked, provided acts were done in good faith.

Testators have the right to dispose of all property to which they are entitled at death (s.8(1)), including after-acquired property (s.8(2)) and property to which the personal representative becomes entitled (s.8(3)), but not trust property (s.8(5)). They may exclude the 30-day rule by contrary intention (s.33B(2)) and may vary the statutory order of application of assets by expressing a contrary intention (s.59(3)).

Spouses and dependants possess the right to apply for family provision if adequate provision is not made (s.41(1)). The court must consider the extent of prior maintenance for dependants (s.41(1A)). A surviving spouse has the election to acquire the shared home at transfer value (s.39A(2)), subject to court approval where the home forms part of larger premises (s.39B(5)). Beneficiaries have the right to inspect the will or obtain a certified copy from any person in possession (s.33Z(1)), and the same right extends to copies of lost wills (s.33Z(2)).

The court enjoys extensive rights: to dispense with formalities (s.18), authorise wills for minors (s.19) or incapacitated persons (s.21), rectify wills (s.33), vary family provision orders (s.42), and make directions on service (s.72). In exercising these powers the court is not bound by the rules of evidence (s.25) and may have regard to any relevant matter (s.25(b)).

The Act contains no criminal penalties or fines. Enforcement is exclusively civil and equitable. Personal representatives who neglect their s.52 duties may be ordered to pay damages, interest on moneys in their hands, and costs (s.52(2)). An executor de son tort is liable to the extent of assets received (s.54(1)). A personal representative who distributes in breach of the protection rules in s.44 remains liable to subsequent claimants, but the Act protects good-faith distributions made after six or nine months without notice (s.44(3)).

Family provision orders are enforced by the court attaching conditions (s.41(2)(a)), directing incidence (s.41(3)), or exonerating parts of the estate (s.41(4)). Breach of such orders would constitute contempt or ground an action for breach of trust. Rectification orders under s.33 are enforced by attaching a certified copy to the will (s.33(4)) and holding the will until compliance (s.33(5)). Statutory wills are executed by the registrar under court seal (s.26); failure to comply with the conditions of an order under s.19 or s.21 would render the will invalid (ss.20, 26).

Interested witnesses and interpreters lose the benefit of dispositions unless exceptions are met (ss.11–12); the remedy is a declaration that the disposition is void to the relevant extent. The court may order costs to be paid from the incapacitated person's assets on a statutory will application (s.21(5)). In intestacy, a spouse who elects to take the shared home must pay the transfer value; failure would entitle the personal representative to seek equitable remedies or court directions.

The ultimate enforcement mechanism is the court's inherent jurisdiction over its own grants and the administration of estates, reinforced by the power to revoke grants (s.45(3)) and to continue proceedings after revocation (s.53(6)).

The Act is expressly subject to the Trusts Act 1973 (ss.6(4), 49(1), 61). Personal representatives exercise all powers of trustees under that Act. The Acts Interpretation Act 1954 supplies the meaning of "document" for s.18 (s.5) and the definition of de facto partner and civil partner for s.5AA. The Civil Partnerships Act 2011 governs termination and voidness for the purposes of s.15A and s.40A.

Family provision interacts with the Family Law Act 1975 (Cwlth): divorce or annulment recognised under that Act triggers revocation under s.15, and maintenance orders may affect "dependant" status under s.40. The Duties Act 2001 governs stamping of transfer documentation on a shared-home election (s.39C(3)), and s.39C(3A) expressly overrides s.17(2) of that Act.

The Guardianship and Administration Act 2000 and Powers of Attorney Act 1998 do not prevent applications for statutory wills (s.28). The Status of Children Act 1978 is engaged by s.41(9) for paternity declarations. The Personal Property Securities Act 2009 (Cwlth) is recognised in the extended meaning of ownership for household chattels (s.34A(3)).

International elements engage the Foreign Judgments Act 1991 (Cwlth) and common-law choice-of-law rules, codified in ss.33T–33Y. The Convention providing a Uniform Law on the Form of an International Will 1973 is given force of law (s.33YB).

Transitional provisions preserve the operation of pre-1997, pre-2002, pre-2005, pre-2006 and pre-2020 law for deaths, wills and applications commenced before the respective amendment dates (ss.73–79).

The Succession Amendment Act 2006 (Act No. 1 of 2006) constituted the most significant overhaul since 1981. It repealed and substituted the whole of Part 2, introducing the dispensing power (s.18), statutory wills for minors (s.19) and incapacitated persons (s.21), the 30-day survivorship rule (s.33B), extrinsic evidence rules (s.33C), and the comprehensive interpretation division (ss.33B–33S). It also modernised revocation rules to include civil partnerships (ss.14A, 15A) and aligned the definition of "will" and "disposition". These changes were designed to reduce technical invalidity, give effect to genuine testamentary intentions, and accommodate modern family structures.

The Discrimination Law Amendment Act 2002 inserted the current s.5AA definition of "spouse", extending intestacy and family provision rights to de facto partners and civil partners, and amended the Acts Interpretation Act 1954 definitions. The Justice and Other Legislation Amendment Act 2020 (Act No. 15 of 2020) removed the leave requirement for statutory will applications (repealing former ss.22, 24), amended ss.21, 23, 25, 26 and 28, and inserted transitional provisions (ss.77–79). The change reflects a policy that the leave filter was unnecessary once the substantive criteria in s.21(2) are met.

The 2013 amendments inserted the international wills division (ss.33YA–33YE) to implement the Washington Convention, facilitating cross-border estate planning. The 2017 amendments updated s.5AA and s.15B to include the ending of de facto relationships as a revocation event, consistent with the recognition of de facto partners elsewhere in the Act.

These amendments respond to societal changes (recognition of de facto and same-sex relationships), practical difficulties (invalid wills due to technical defects), demographic realities (ageing population and rising incapacity), and international obligations.

The text itself does not record decided cases, but the structure of the Act reveals the principal areas of contention. The dispensing power in s.18 has generated litigation because the court must be satisfied that the deceased "intended" the document to constitute his or her will. Subsection (3) permits evidence of execution and statements of intention, but s.18(2) requires the court to be "satisfied" on the balance of probabilities. The requirement that the document "purports to state the testamentary intentions" has led to disputes over informal notes, drafts and even audio recordings (the definition of "document" for s.18 refers to the Acts Interpretation Act 1954, Schedule 1).

Family provision applications under s.41 are a prolific source of contested proceedings. The court must determine whether "adequate provision" has been made for "proper maintenance and support". The discretionary nature of the order (s.41(1)), the disentitling conduct exception (s.41(2)(c)), and the nine-month time limit (s.41(8)) frequently produce appeals on quantum and eligibility. The interaction with the 30-day rule in s.33B can bar claims where a spouse or child dies shortly after the deceased.

Rectification under s.33 is confined to clerical errors or failure to give effect to instructions. The six-month limit (s.33(2)), extendable only if distribution has not occurred, has produced controversy when beneficiaries have changed position. Section 33A protects personal representatives who distribute without notice, but the notice requirements (written, signed by applicant or solicitor) have been strictly applied.

Statutory wills for incapacitated persons under s.21 require the court to be satisfied the proposed will "is or may be" one the person would have made. The evidentiary burden in s.23 (reasons, medical evidence, size of estate, draft will, wishes, prior wills, possible family provision claims, charitable intentions, circumstances of potential claimants, intestacy entitlements and any other relevant facts) is onerous. The 2020 amendments removing the leave requirement under former s.22 were intended to reduce preliminary litigation, but the substantive criteria remain a fertile ground for dispute between family members.

The shared home election provisions (ss.39A–39D) have produced controversy where the home forms part of a larger building or agricultural land; the resident spouse must obtain court approval (s.39B(2)), and the court must be satisfied the acquisition will not substantially diminish asset value or make disposal more difficult (s.39B(5)).

The presumption of survivorship in s.65, the abolition of retainer and preference (s.58), and the statutory order of assets (s.59) have each generated argument when estates are insolvent or partially insolvent.

Most practitioners do not realise that the 30-day survivorship rule in s.33B applies to all dispositions unless a contrary intention appears, and that a general survivorship clause is insufficient (s.33B(3)). The rule can inadvertently disinherit an intended beneficiary who dies in a common disaster.

The interested witness rule in s.11 and the interpreter rule in s.12 are strictly applied; even a small gift to the witness or interpreter can void the entire disposition unless the three exceptions are met. The court satisfaction exception in s.11(3)(c) and s.12(3)(b) requires evidence that the testator knew and approved the gift and acted freely—evidence that is often unavailable after death.

The election to take the shared home under s.39A must be made within three months of the personal representative's notice or appointment (s.39A(3)). Failure to elect in time, or failure to obtain court approval where required by s.39B, permanently loses the right. The transfer value is market value at death less encumbrances (s.34B(4)), and equitable adjustments for outgoings and rents are mandatory (s.39C(2)).

Personal representatives who make early maintenance distributions under s.49A are protected only if made in good faith. Knowledge of a pending family provision application destroys the protection. The nine-month limitation in s.41(8) is not a true limitation; the court may hear an application out of time, but only in its discretion and usually only if no final distribution has occurred.

Section 33Z gives a wide class of persons (including creditors and any person who "may" apply under s.41) the right to inspect or copy a will. Refusal can lead to court orders and costs. The registrar's obligation to hold statutory wills in sealed envelopes (ss.29–31) is strict; breach does not invalidate the will (s.29(3)), but may expose the registrar to disciplinary sanction.

The chain of executorial representation in s.47 is broken by any intestacy or failure to obtain Queensland probate. Many practitioners assume an interstate grant automatically confers authority; it does not.

Finally, the definition of "spouse" in s.5AA requires, for de facto partners, two years' cohabitation ending on the deceased's death. A shorter relationship will disqualify the partner from automatic intestacy rights and may require a family provision application with its attendant costs and uncertainty.

To comply when drafting a will, ensure it is in writing, signed by the testator with the signature made or acknowledged in the presence of two witnesses who both attest in the testator's presence (s.10). Avoid gifts to witnesses or interpreters (ss.11–12). Expressly exclude the 30-day rule if desired (s.33B(2)). For foreign elements, consider the validating rules in s.33T. If the client lacks capacity, prepare a detailed s.23 affidavit addressing all listed matters and obtain court approval before execution.

When acting as personal representative, obtain a grant promptly. Collect all assets (s.52(1)(a)). File an inventory if required. Pay debts in the statutory order (s.59), bearing in mind that specifically charged property bears its own debt (s.61). Distribute only after six months have elapsed without notice of claims, or nine months if notice has been received (s.44(3)). For intestate estates, apply Schedule 2, remembering the shared home election window (s.39A(3)). If multiple spouses exist, obtain a distribution agreement or court order before distributing (s.36).

For family provision claims, file within nine months (s.41(8)). Prepare evidence of inadequate provision, the applicant's needs, the size of the estate, and any disentitling conduct. If acting for a personal representative, give written notice of intended distribution after six months to bar late claims.

When advising on shared home elections, obtain a registered valuer's report (s.39A(5)). Advise the resident spouse of the three-month deadline and the need for court approval where the home forms part of larger premises (s.39B). Ensure transfer documentation is stamped before payment (s.39C(3)).

For statutory wills, compile the exhaustive list of information required by s.23. Satisfy the court that the proposed will is one the incapacitated person "is or may be" likely to have made (s.21(2)(b)(iii)). Ensure the registrar executes under seal within 14 days or such other period as ordered (s.26(1)).

Maintain detailed file notes of all advice on revocation risks (marriage, divorce, civil partnership, de facto separation). Register any caveats or lodge notices under s.33Z if acting for a beneficiary. Comply strictly with any court orders for rectification (s.33(4)–(5)) or variation (s.42). In all cases, act in good faith; the protections in ss.44, 49A, 53 and 54 are lost if good faith or the absence of negligence cannot be demonstrated.