Risks of Informal, ‘e-Wills’ for Estate Planning

Article by Claire Wilson

TRIGGER WARNINGS: SUICIDE, SUICIDAL IDEATIONS

In the digital age, where smartphones are an integral part of our lives, it is not uncommon for individuals to use their devices for tasks traditionally reserved for formal documentation. One such emerging trend is the creation of “iPhone Wills”—testamentary intentions recorded in smartphone apps, notes, or even audio and video recordings. While these methods may seem convenient, they can pose significant risks to your estate planning.

The formal requirements of a legally valid Will include that it must be in writing, signed by the testator in front of two witnesses, and also signed by the two witnesses.

However, section 18 of the Succession Act 1981 (Qld) (the Act) enables the Supreme Court of Queensland to dispense of certain formal requirements in particular circumstances. This provision essentially recognises that people can express their final wishes outside of traditional legal presentations. They are known as informal Wills, and can occur in many formats, from handwritten notes to digital messages.

Recent case law highlights the pitfalls of relying on informal Wills and underscores the importance of proper legal processes.

Case Study: Estate of Carrigan [2018] QSC 206

The Estate of Carrigan demonstrates how informal Wills can sometimes be upheld. Mr Carrigan, who tragically died by suicide, left audio recordings detailing his testamentary intentions. These recordings included a voicemail and a tape-recorded message specifying the distribution of his estate, which was valued in excess of $1.6 million. The court found that the recordings satisfied the three factual conditions required for a document to constitute a Will: (1) that there was a document, (2) the document embodied testamentary intentions, and crucially, (3) that the deceased intended the document to operate as his last Will.

Case Study: Estate of Leslie Wayne Quinn [2019] QSC 99

Similarly, the Estate of Quinn involved a video-recorded Will created four years before the deceased’s death. Despite the informal nature of the recording, the court was satisfied that it constituted a valid Will. The deceased had testamentary capacity and intended the video to operate as his Will.

Case Study: Peek v Wheatley [2025] NSWSC 554

In contrast, the very recent case of Peek v Wheatley serves as a stark reminder of the limitations of informal Wills. Mr Peek recorded his testamentary intentions in the notes app of his iPhone following a near-death experience. His multi-million dollar Estate was primarily left to his friend, Mr Wheatley, with smaller portions allocated to his brother and solicitor. Upon Mr Peek’s death, a number of months after the note’s creation, the document’s authenticity and testamentary intention were satisfied, however, the court was not satisfied that Mr Peek intended the note to have present operation as his Will.

The wording suggested that the note was a step towards creating a formal Will, rather than a final testament. Consequently, the court granted letters of administration for an intestate estate, leaving the distribution of assets to statutory rules rather than Peek’s expressed wishes.

While cases like Carrigan and Quinn show that informal Wills can be upheld, they also highlight the uncertainty and legal challenges associated with such documents. Courts must carefully examine the deceased’s intentions, the wording of the document, witness evidence, and the circumstances surrounding its creation. This process can lead to delays, increased legal costs, and potential disputes among beneficiaries.

Moreover, informal Wills may fail to address complex estate planning needs, such as tax implications, trusts, or guardianship arrangements. They also risk being deemed invalid if the deceased’s intentions are unclear or if the document is considered a preliminary step rather than a final testament.

Conclusion: The Importance of Formal Estate Planning

The risks associated with informal Wills underscore the importance of formal estate planning. Engaging a qualified solicitor to draft a legally binding will ensures that your wishes are clearly articulated and protected. While technology offers convenience, it cannot replace the expertise and security provided by professional legal services. To safeguard your estate and minimise the risk of disputes, contact our office’s Estate Planning team to organise a consultation.

If you require any further information, have any specific questions or wish to discuss your Estate Planning with our friendly team, you can contact us by phone on 07 3397 9622 or visit our website to make an online enquiry.

The blog published by Spranklin McCartney Lawyers is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Spranklin McCartney Lawyers on any legal queries concerning a specific situation.

**Everyday Exemptions Under the Duties Act 2001 (Qld)**

Article by Christopher Lee

The Duties Act 2001 (Qld) (Act) governs the imposition of transfer duty on property acquisitions in Queensland. It applies to a variety of property (see section 10 of the Act for a full outline) and is not limited solely to real property (that is, land).

Whilst the Act governs the imposition of transfer duty, it also provides for an array of exemptions. There are three, however, commonly encountered provisions which are most relevant to ‘Mum and Dad’ individuals: Sections 143, 144, and 151.

Section 144 – Exemption for Joint Tenancy Survivorship

Section 144 applies to situations where real property is owned as joint tenants, and one of the tenants passes away. Under the rules of survivorship, the surviving party acquires full ownership of the property without incurring transfer duty.

This exemption is most frequently encountered with couples in a marriage or de facto relationship, who typically hold property as joint tenants. However, it is not restricted to such relationships. For instance, siblings owning property as joint tenants can also benefit from this exemption, as survivorship rules will apply.

As an aside, it is important to determine whether property ownership is held as joint tenants or tenants in common when considering estate planning. Ownership structure can have a significant impact upon an individual’s estate planning strategies in the future.

Section 143 – Change of Tenure Exemption

Section 143 provides for an exemption of transfer duty to property owners when changing the tenure of their property, being a change between holding property as joint tenants and tenants in common.

Whilst this exemption applies to all forms of real property, there is a restriction as to is application, being that the ownership interest must remain the same both before and after the transfer.

For example, if three owners mistakenly acquire property as joint tenants, they could change the tenure to tenants-in-common, with each holding equal one-third shares, and be exempt from transfer duty. However, the exemption would not apply if the owners wish to modify the ownership interests to 50%, 25%, and 25%.

This exemption ensures flexibility in correcting tenure arrangements when the existing interests among co-owners remain consistent.

Section 151 – Particular Residence Exemption

Section 151 provides a transfer duty exemption for residential properties between parties in a marriage, de facto relationship, or civil partnership, but subject to specific criteria being met.

This exemption applies when one party transfers part ownership of residential property by gift to the other party.

For example, if a property is initially owned solely by one spouse, they can transfer part ownership to their partner without incurring transfer duty. This exemption can apply whether one party holds the whole property in their sole name, or, if the property is held by both parties, but in differing proportions.

However, for the exemption to apply, the following criteria must be met:

Residential Property: The property subject to the transaction must be classified as residential land.
Gift Transfer: Ownership must be transferred as a gift from one party to the other.
Subsisting Relationship: The parties must be in a valid marriage, de facto relationship or civil partnership.
Ownership Structure: After the transaction, ownership must be held as joint tenants or tenants in common in equal shares.
Principal Place of Residence: The property must serve as the principal place of residence for both parties immediately following the transaction.

These exemptions under the Duties Act 2001 (Qld) highlight the importance of understanding property ownership structures prior to acquiring property and during a relationship.

These exemptions may assist individuals to correct errors in ownership or as a tool for their Estate Planning for the future.

Breaking Down Building and Pest Inspection Conditions

Article by Hamish Burke

Unless you are buying at auction, most contracts of sale for property in Queensland include a building and pest inspection condition. Buyers who have the benefit of a building and pest inspection condition can terminate a contract where they have not received a satisfactory building and pest report, acting reasonably.

Although this may sound simple, buyers and sellers commonly misunderstand the operation of this condition and the circumstances giving rise to a right of termination.

For example, if you are selling property and your buyer advises that their building and pest report shows the ceiling is starting to cave in, can the buyer terminate the contract under the building and pest inspection condition? Think:

Is the age of the house a factor?
Is it a body corporate issue?
Is the issue merely cosmetic, or is it structural?
Can I see a copy of the building and pest report?
Is it worth getting a second opinion from a different building inspector?
Can I fix the issue, or does it require the expertise of a licenced tradesperson?
How much will it cost to fix?
Can it be fixed in time for settlement?
What quality of work needs to be undertaken?
Did the buyer already consider this issue when they put in their offer and is the buyer using this issue as leverage to reduce the purchase price?

As you can see, many valid questions can arise in these common situations.

You can start by looking at the wording of the standard building and pest inspection condition to see if it provides any direction. This is found in the Real Estate Institute of Queensland’s Contract for Houses and Residential Land and Contract for Residential Lots in a Community Titles Scheme, which are the most commonly used forms for residential transactions in Queensland. Clauses 4.1 and 4.2 read:

This contract is conditional upon the Buyer obtaining a written building report from a Building Inspector and a written pest report from a Pest Inspector (which may be a single report) on the Property by the Inspection Date on terms satisfactory to the Buyer. The Buyer must take all reasonable steps to obtain the reports (subject to the right of the Buyer to elect to obtain only one of the reports).
The Buyer must give notice to the Seller that:
a satisfactory Inspector’s report under clause 4.1 has not been obtained by the Inspection Date and the Buyer terminates this contract. The Buyer must act reasonably; or
clause 4.1 has been either satisfied or waived by the Buyer.

Knowing this, try going over the above questions again. Are there any clear answers? Who decides what is and is not reasonable? Unfortunately, the standard terms do not provide any assistance with determining what is a reasonable and valid termination.

In lieu of any assistance from the standard terms, you would need to consider:

The age of the property, to determine whether there is a reasonable likelihood of this issue arising in the ordinary course of nature. You should expect less building and pest issues with new builds as opposed to older homes.
The severity of the issue, to determine whether it is a consequence of reasonable wear and tear or if it is a serious building defect which an ordinary person should not expect to inherit.
The cost to repair the issue, having reference to quotes from one or more licenced tradespersons (if the issue is so significant that the seller is not capable of repairing it themselves and requires the help of a professional).
The noticeability of the issue, to determine whether the buyer should have been aware of the issue before making an offer, including whether the real estate agent made the buyer aware of the nature of the issue. In some cases, buyers merely use the building and pest inspection condition as leverage to achieve a price reduction, even where issues are not significant enough to warrant termination.

Unfortunately, parties face this dilemma all the time. This can be overwhelming and shows why it is important for buyers and sellers to engage a qualified lawyer with experience in conveyancing matters. Our firm has been assisting buyers and sellers for over 50 years, and our conveyancing team is equipped with the knowledge and experience to help guide you through your next conveyance. Whether you are buying your first home or looking for a lifestyle change, you can contact us by phone on 07 3397 9622 or visit our website to make an online enquiry.

First Home (New Home) Concession

The First Home (New Home) Concession may be applicable to you if you are planning on purchasing a new home, or a substantially renovated home, which has not been previously occupied since it was built or renovated.

A home is considered a ‘substantially renovated home’ where the original structure has been removed, replaced or altered to the point that the property has structurally changed. An example might include a home that has been completely gutted, leaving only the original external and the interior has been re-built. Renovations that might be considered cosmetic, such as painting of walls, are not classified as ‘substantial renovations.

How do you know if you are eligible for the First Home (New Home) Concession?

The QRO provides the following eligibility criteria for the first home (new home) concession:

You must be purchasing residential land and the Contract must have been entered on or after 1 May 2025.
You must be paying market value for the property.
You must provide the QRO with a vendor statement as evidence that the home is a new home or a substantially renovated home.
You must intend on moving into the property as your primary residence within 1 year of settlement.
You must be at least 18 years of age.
You must be legally acquiring the property as an individual.
You must have never claimed any other home concession in the past.
You must have never held an interest in any property anywhere in Australia or overseas.

First Home Concession

The First Home Concession may be applicable if you are considering purchasing your first home, which is an existing home. An existing home is that of an established property that has previously been occupied.

The First Home Concession may provide up to $24,525.00 in transfer duty for purchases of residential property under the value of $800,000.000.

How do you know if you are eligible for the First Home Concession?

The QRO provides the following eligibility criteria for the First Home concession:

You must be purchasing residential land with a maximum value of $800,000.00.
If you are purchasing a property between $700,001.00 – $799,999.00, you must be paying market value for the property.
You must intend on moving into the property as your primary residence within 1 year of settlement.
You must be at least 18 years of age.
You must be legally acquiring the property as an individual.
You must have never claimed any other home concession in the past.
You must have never held an interest in any property anywhere in Australia or overseas.

If you are thinking about purchasing your first home and are interested to know more about the First Home Concessions and any other Concessions that may be available to you, contact Spranklin McCartney Lawyers to chat with our friendly conveyancing team.

What is a De Facto Relationship?

Name: Spranklin McCartney Lawyers
Address: Suite 21, 25 Samuel Street, Camp Hill, Queensland, 4152
Telephone: 07 3397 9622

The Family Law Act defines what is a de facto relationship and how the property of those parties will be dealt with in the event of a relationship breakdown.

A de facto relation exists when 2 persons of different, or the same sex are:

not legally married to each other;
not related by family; and
living together as a couple on a genuine domestic basis.

The courts consider many factors when determining if a relationship falls within the definition of a de facto relationship. These include:

the duration of the relationship;
whether a sexual relationship exists;
the degree of financial dependence or interdependence, and any arrangements for financial support between them;
degree of mutual commitment to a shared life;
care and support of children; and
if the relationship was registered under a prescribed law in a State or Territory;

If your relationship falls within the definition of a de facto relationship it is important that you are aware of the differences when it comes to dealing with property following a breakdown of the relationship.

De facto couples have up to two (2) years to apply for financial orders (property settlement), otherwise you will need to obtain the Court’s permission. Married couples have up to twelve (12) months following divorce to apply for orders.

Provided that you comply with the timeframes, you generally have access to the same Court systems as married couples. You are able to deal with the division of assets, maintenance, parenting and child support.

Due to the complexity in the Family Law system you may want to consider entering into a Binding Financial Agreement (‘pre-nup’) before you commence a de facto relationship. While this option is also available to married couples, it is most commonly entered into before the parties marry. A Binding Financial Agreement may provide more clarity to the division of assets should the relationship breakdown.

If you wish to discuss matters relating to de facto relationships, or entering into a Binding Financial Agreement we would be happy to assist you.

The Importance of Contracts

Contracts are without doubt, the most common exposure to law which people have on a day-to-day basis.

Simple transactions such as buying bread, milk or entering a parking lot commonly gives rise to a contract.

Contrary to popular belief, contracts do not have to be in writing to be valid and enforceable, however, it is much each to prove one that is.

There are circumstances in which a verbal contract should never be relied upon and for any commercial transactions, it is always recommended to have a formal written agreement constituting a contract between the parties to the agreement.

Whilst there may be costs and time associated with the preparation of a contract, particularly a detailed contract to evidence an agreement between two or more parties, at the end of the day, it is often found that the time and cost involved at the beginning of the matter will outweigh the detriment that could be sustained if the contract is not fulfilled by one or all parties.

The primary benefit of a written contract is that it clearly documents all the terms that have been agreed between the parties.

It outlines what every party’s obligation is and gives them a uniform document they may fall back upon or referred to in the event that there is a default or breach of the agreement by one or the other.

A contract is used to govern the interaction between the parties throughout the agreement and it is also an invaluable tool if one party needs to enforce its rights for a breach or default under that agreement.

At Spranklin McCartney Lawyers we have an extensive history in providing and drafting the Spokane custom contracts to a variety of individuals and businesses for a wide array of different transactions. Paragraph contracts which we have prepared include:

subcontractor agreements;
terms and conditions of trade;
loan agreements and mortgages;
option agreements;
business sale contracts;
the spoke special conditions for residential sale contracts; and
client engagement agreements.

In addition to our experience in drafting the contractual agreements, we also bring a vast wealth of knowledge and experience to our clients during the negotiation phase of any contracts. It is important to ensure that all terms and negotiations are undertaken properly and accurately such that an accurate contract may then be prepared based upon those negotiations.

If you or your business need a contract we have that you do not hesitate to contact our office as we always happy to chat with you to see how we can assist you will your business.

Real Estate Purchase in Queensland? Does FIRB apply to you?

The Foreign Investment Review Board (FIRB) is the entity which oversees real estate and business investments in Australia by foreign persons.
Section 5 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (Act) defines a foreign person as a natural person who is not ordinarily a resident in Australia. The Act provides further definitions for corporations and trustees who may also be classified as a foreign person.

Foreign persons who are looking to purchase residential real estate in Australia need to obtain the approval of FIRB before entering into a Contract of Sale.
If approval has not already been granted, a condition should be inserted into the Contract of Sale allowing the buyer to terminate if FIRB approval is not obtained before settlement.
FIRB will generally approve a foreign person’s acquisition of one established dwelling on the following conditions:

a) the property is vacant at settlement;

b) the property is used as a principal place of residence;

c) no part of the property is rented; and

d) the property is sold when it ceases to be a principal place of residence.

There are, however, exceptions to the rule. A few of these include:

1. if you are purchasing the property as joint tenants with your spouse, who is an Australia resident;

2. if you are purchasing off a developer who has approval to sell to foreign persons; or

3. you have acquired the property as the beneficiary of a Will.

Foreign Investment is a complex and sometimes confusing area of law. Failure to comply can result in significant adverse consequences. If you are a foreign person looking to purchase real estate or other business investments in Australia, we recommend contacting one of our friendly staff for legal advice.

For further information regarding FIRB and real estate purchases by foreign persons, please also visit: www.firb.gov.au

Making a Claim for Compensation against an Estate

Correct advice and proper Estate Planning can help prevent claims for compensation against an Estate – consider this scenario:

In 2002, Mary drafted a Will leaving her house to her daughter Alice. The rest of her estate is to be divided equally between her grandchildren. At the same time, she also drafted an Enduring Power of Attorney appointing Alice as her attorney. Alice had no knowledge of the contents of Mary’s Will.

In 2005, Mary became incapacitated and needed to be placed into an Aged Care Facility. To raise funds for a bond, Alice sold the house and used half the proceeds towards Mary’s bond. The remaining cash was put in Mary’s bank account.

In 2013, Mary passes away. Alice discovers that as the house was sold, she is left nothing under the terms of the Will.

What can Alice do?

The situation described above is not an uncommon one. Often attorneys unknowingly sell an asset that has been specifically bequeathed under a Testator’s Will. As the asset is no longer in existence, when the estate is administered the gift is adeemed and the beneficiary receives nothing.

Section 107 of the Powers of Attorney Act 1998 (Qld) provides that where a person’s benefit in a principal’s estate is lost because of the sale or other dealing of the principal’s property by an attorney, a person may make a claim for compensation out of the principal’s estate. This provision applies notwithstanding the person whose interest was lost was the attorney, such as Alice.

A similar provision is contained in section 60 of the Guardianship and Administration Act 2000 (Qld), and applies where the property was sold by an administrator for an adult.

Interestingly, when the Court is determining the quantum of the interest lost by the beneficiary, they will look to the value of the asset had it still been in existence at the time of the Testator’s death.

Therefore, in Alice’s scenario if the house was sold for $300,000.00 in 2005, but is valued at $400,000.00 in 2013, her interest lost in the Mary’s estate would be $400,000.00.

So how can a situation such as Alice’s be avoided?

Your Will and Enduring Power of Attorney should be drafted together. Where appropriate, it may be beneficial to provide your attorney with a copy of your Will, so they are aware of the contents therein.

Contact our friendly team at Spranklin McCartney Lawyers today for estate planning advice, or assistance in making a claim for compensation.

Article accurate as at 8 November 2013

Trustees of a Trust – What are their Powers and Duties?

There are many different types of trusts which can be established. If you have been appointed as the trustee it is important to know your responsibilities and obligations.

As a trustee, you are required to manage the assets of the trust for the benefit of the beneficiaries. This includes handling the assets with the same reasonable care, diligence and skill you would use in managing your own affairs.

Some specific duties of a trustee are as follows:

to carry out the trust in strict compliance with the terms of the trust deed;
to ensure trust property is vested in your name as trustee;
to carry out the trust personally and not delegate your duties;
to keep proper financial records of all trust dealings;
to keep your personal finances separate from those of the trust; and
to pay and transfer income to the right beneficiary.

There are also a wide range of powers conferred on a trustee by the Trusts Act 1973 (Qld), such as the power to:

sell trust property;
lease trust property;
invest trust funds;
mortgage trust property and borrow money;
repair and improve trust property;
insure trust property; and
exchange trust property for that of a similar nature.

Your powers as a trustee may also depend upon the terms of the trust deed.

It is crucial to understand your responsibilities and obligations as a trustee, as the failure to act properly could result in a claim against you by the beneficiaries for any losses sustained.

If you are looking to establish a trust or have been appointed as trustee, we would be happy to help you with any queries or concerns you may have.

PHONE 07 3397 9622