Does a will override the law?

A will is designed to ensure that your assets are distributed according to your wishes after you pass away. But many wonder if the law can override their wishes. The answer to this question isn’t straightforward.

While a will is a legally binding document, it must comply with Australian law to be valid. In Queensland, the Succession Act 1981 (Qld) sets out guidelines for formatting wills and how estates ought to be managed. The following examples are key situations where the law can override a will.

1. Family Provision Claims
If a person is unfairly left out of a will, or hasn’t adequately been provided for, they may be able to challenge the will through a family provision claim. Those that can apply for this type of action include:

• Spouses (including de facto partners)
• Children (including stepchildren and adopted children)
• Dependents

If the court finds that the will hasn’t made proper provisions for an eligible person, it can override the clause within the will and redistribute assets in a way they feel is fair.

2. Legal Requirements and Formalities
For a will to be valid, it must meet strict requirements, including:

• Being in writing
• Signed by the testator (the person making the will)
• Witnessed and signed correctly by 2 witnesses

If a will doesn’t meet these requirements, the court may declare it invalid. In this case, the estate may be distributed according to intestacy laws, which determine how assets are shared when there is no valid will.

3. Jointly Owned property and Superannuation
Some assets aren’t covered by a will at all. This includes:

• Jointly owned property automatically passes to the surviving spouse
• Superannuation is often distributed according to the fund’s rules or via a binding death benefit nomination

While a will is a powerful legal document and you have the freedom to direct your estate how you please, a will doesn’t always override the law. The law can sometimes step in if the will is deemed unfair or invalid. Certain legal principles, family provision claims, and specific asset rules can change how an estate is distributed. To make sure your will is legally sound and reflects your wishes, it is always best to seek legal advice from a succession lawyer.

For more family law advice like this, feel free to reach out to Genuine Legal for a consultation. Call us on (07) 2102 0641 if you need our assistance.