Plan for your future – by taking action today!
The research is out - Queenslanders are preparing for their future and agree that making a Will is easy to do and should be done (Kantar Public Research 2023). This is great news! Though in the words of psychologist Nathaniel Branden, ‘a goal without an action plan, is a daydream’.
Over the past three years, Queensland Public Trustee has been working with Kantar Public Research to understand the attitudes and behaviours amongst Queenslanders surrounding the importance of making an Enduring Power of Attorney, an Advance Health Directive, and a Will.
According to the latest data, 40% of the LGBTQIA+ community have an Enduring Power of Attorney in place, an increase of 19% on 2021 figures. The number of those with an Advance Health Directive has also increased to 36% (Kantar Public Research 2023).
Where we want to raise awareness is that proportion of the LGBTQIA+ community who have a valid Will but who may need to take the time to review and update it, as well those who don’t have a valid Will at all who are relying on misconceptions on the topic of succession law including beliefs like:
‘A Will is not necessary if my family or loved ones are aware of my wishes’.
‘Decisions will be made by my remaining family members’.
Making a Will is deeply personal, but let’s break down the consequences of dying without a valid Will in Queensland.
If you die without a valid Will, you are said to die intestate and your assets – otherwise known as your estate - will be distributed according to the intestacy rules under the Succession Act (1981) (Qld). These intestacy rules specify who your assets are distributed to in order of priority, beginning with your spouse or de facto partner (including same-sex partner) and children, and where applicable, your grandchildren.
If on your death, you are not survived by a spouse, partner, or children, then your estate is distributed to your next of kin, in the order prescribed by the intestacy rules, beginning with your parents, brothers and sisters, nephews and nieces, grandparents, then uncles, aunts and cousins, then the Crown.
Dying without a valid Will means your wishes cannot be considered. Any persons to whom you would have wished to leave a portion of your estate will only be entitled to such a gift if they are listed as a potential beneficiary in the Succession Act.
For same sex couples, the right to marry in Australia was no longer determined by sex or gender in 2017. However, when it comes to de facto relationships (including same-sex relationships), there are certain requirements which must be satisfied to meet the definition of a de facto couple within the Succession Act.
Let’s unpack this with a scenario.
Ben and Fred have been in a long-distance relationship for nearly two years and have no children. Ben has been estranged from his parents since he was a teenager and promised Fred his estate, should anything happen to him. Ben died suddenly without a Will in place, leaving a house and two cars as his primary assets.
Although Fred is Ben’s partner, Fred will not enjoy the same automatic rights he would have if he and Ben had been married, or in a civil partnership. Under the Succession Act, Fred would meet the definition of Ben’s de facto partner, only if they had lived together as a couple for a continuous period of at least two years at the time Ben died.
Without a valid Will, Ben’s assets will be distributed to his next of kin, his estranged parents, which is unlikely to have been Ben’s intention. Fred can proceed to contest this, but he will need to provide evidence of their relationship and may also need to commence legal proceedings.
As we go through life, you may change, people in your life may change, and your wishes may change. Making a Will, and ensuring it is up to date, allows you to express your wishes, including how you would like your estate to be distributed once you die. Take action – make or update your Will today.