Proposed Testamentary Trust Tax Changes: Government Signals Further Change

Proposed Testamentary Trust Tax Changes: Government Signals Further Change

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Proposed Testamentary Trust Tax Changes: Government Signals Further Change

Author: Robert Lamb

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3 min read

23 Jun 2026

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    Key Takeaways
  • ࠂ
    Recent reports indicate the Government intends to revise its proposed testamentary trust tax changes, however the legislation has not yet been introduced or passed by Parliament.
  • ࠂ
    Testamentary trusts remain an important Estate Planning tool, with flexibility continuing to be a key feature of a well-structured Will.
  • ࠂ
    There is no need to make immediate changes based on media reports alone, but if you have concerns about your Estate Plan, now is an appropriate time to seek advice.

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When the Federal Budget was handed down in May, the Government announced a proposal to introduce a minimum 30% tax rate on income from discretionary trusts, including discretionary testamentary trusts established from 1 July 2028.

At the time, we shared in our recent Federal Budget Proposal article that the proposal represented a significant potential change to Estate Planning and that, importantly, the legislation had not yet been introduced or passed by Parliament.

Since then, the Government has indicated it intends to revise the proposal. It has been widely reported that discretionary testamentary trusts established for genuine Estate Planning purposes will no longer be subject to the proposed 30% minimum tax. Instead, the proposed minimum tax is expected to only apply where income from those trusts is distributed to a corporate beneficiary.

While this is welcome news for many Australians, it is important to remember that the proposed legislation has not yet been finalised or passed by Parliament. The detail of the final law, including any exclusions and how they will operate in practice, remains uncertain.

What does this mean for your Estate Plan?

Our advice remains largely unchanged.

Testamentary trusts continue to be an important Estate Planning tool. They can provide significant benefits including:

  • Asset protection
  • Flexibility in administering inheritances
  • Protection for vulnerable beneficiaries, and
  • Tax planning opportunities where appropriate

The recent developments reinforce the importance of building flexibility into Estate Planning rather than reacting to proposals that may ultimately change before becoming law.

Should you change your Will?

For most people, there is no immediate need to amend an existing Will solely because of these announcements.

However, if you have questions about how the proposed changes may affect your Estate Plan, or you are considering updating your Will for other reasons, now is an appropriate time to seek advice.

As the legislation is still being developed, we are not yet able to provide definitive advice on how the final laws will affect individual Estate Plans. Once the legislation is settled, we will be able to provide more specific recommendations where required.

We're here to help

Our Wills & Estates team is here to discuss the proposed changes and answer any questions you may have about your Estate Planning arrangements. To arrange a confidential discussion, please contact Robert Lamb, Tracy Pratt or our Wills & Estates team on (07) 3220 1144 or send our team an email via email@hillhouse.com.au.

Areas of Expertise

Wills & Estates
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Proposed Testamentary Trust Tax Changes: Government Signals Further Change

Federal Budget Proposal Signals Major Changes for Testamentary Trusts

Home » Wills, Estates & Trusts

Federal Budget Proposal Signals Major Changes for Testamentary Trusts

Author: Robert Lamb, Anna Huang

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3 min read

28 May 2026

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    Key Takeaways
  • ࠂ
    Discretionary Testamentary Trusts have long been recommended as a prudent estate planning strategy for asset protection and tax-effective distribution of assets to beneficiaries.
  • ࠂ
    The Government announced, in the latest Federal Budget, a proposal to impose a minimum 30% tax rate on income from discretionary testamentary trusts established from 1 July 2028, significantly changing their future taxation treatment, while fixed testamentary trusts remain unaffected.
  • ࠂ
    Testamentary trusts established under a Will do not take effect when the Will is signed, but typically arise only after the Will maker’s death and, in most cases, once Probate has been granted and the executor establishes the trusts, which may occur well after 1 July 2028.
  • ࠂ
    It is important to ensure your Estate Plan remains flexible and aligned with changing taxation and succession planning considerations.

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Discretionary Testamentary Trusts have long formed an important part of many estate plans and we have recommended them to numerous clients over many years. They remain a prudent strategy for asset protection and tax effective distribution of assets to beneficiaries under the law as it has stood for many decades.

As part of the Federal Budget released this month, the Government announced a proposal to impose a minimum tax rate of 30% on the income of discretionary testamentary trusts established from 1 July 2028. This represents a significant change in the law on the future taxation treatment of discretionary testamentary trusts. The change does not apply to other forms of testamentary trusts, including fixed testamentary trusts.

At this stage, the legislation has not yet been finalised or passed by Parliament. Accordingly, the information in this update is subject to the final form of the legislation as passed by Parliament.

It is important to note that the testamentary trusts created under a Will do not actually come into existence when the Will is signed. Rather, testamentary trusts generally only come into existence upon the death of the Will maker at the earliest and, more commonly, shortly thereafter when the executor of the estate establishes the testamentary trusts after Probate is granted. Accordingly, testamentary trusts contemplated under a Will may not come into existence until well after 1 July 2028.

In most cases, our Wills include a provision allowing a beneficiary to direct the executor not to transfer some or all of their entitlement under the Will into a testamentary trust. This clause provides beneficiaries with flexibility to decide at the relevant time whether establishing the testamentary trust remains appropriate, taking into account the taxation and other implications applying at that time.

In some circumstances, clients have instructed us not to include this flexibility. This may occur, for example, where a beneficiary is considered too young or inexperienced to manage an inheritance independently, or where the client specifically wishes to ensure assets remain protected within a Testamentary Trust structure regardless of the beneficiary’s preference. Under the proposed changes, discretionary testamentary trusts of this nature established after 1 July 2028 may become subject to the proposed minimum 30% tax rate.

In light of this significant proposed change to the taxation treatment of discretionary testamentary trusts, now may be an opportune time to review your Wills and broader estate planning arrangements. We have reviewed many Wills that require assets to be transferred into a discretionary testamentary trust and therefore may not provide the same degree of flexibility under the proposed regime.

If you are uncertain whether your current arrangements may be affected, we would be pleased to review your Will and advise whether any changes should be considered. Once the proposed legislation is finalised, we will also be able to provide more specific recommendations as to whether amendments to your Estate Plan or Will may be desirable or necessary.

Key Takeaway

While the proposed changes are not yet law, they highlight the importance of ensuring your Estate Plan remains flexible and aligned with evolving taxation and succession planning considerations. Reviewing your arrangements now may help avoid unintended outcomes for beneficiaries in the future.

 

To arrange a confidential review or discuss your Estate Planning arrangements, please contact Anna Huang and our Wills & Estates team on (07) 3220 1144 or via email at email@hillhouse.com.au.

Areas of Expertise

Wills & Estates
Government
Related Posts:
Proposed Testamentary Trust Tax Changes: Government Signals Further Change

Queensland Trusts: The 2025 Reform Explained- What It Means For You

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Queensland Trusts: The 2025 Reform Explained - What It Means for You

Author: Robert Lamb, Anna Huang

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3 min read

12 May 2026

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    Key Takeaways
  • ࠂ
    The Trusts Act 2025 (Qld) introduces a modern, clearer framework for how trusts operate in Queensland
  • ࠂ
    Trustees now have broader powers, but those powers come with more clearly defined duties and accountability
  • ࠂ
    Beneficiaries have stronger rights, including better access to information and improved financial protections
  • ࠂ
    Now is the time to review your trust deed and governance processes to ensure they align with the new regime

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A long-awaited reset for trust law in Queensland

With the introduction of the Trusts Act 2025 (Qld) (the Act), the State has amended a 50-year old legislation that better reflects how trusts are used today.

While the core concept of a trust remains unchanged, the way trusts are administered, documented and challenged has evolved. The new Act is designed to simplify interpretation, improve transparency, and provide clearer guidance for trustees and beneficiaries alike.

A stronger statutory framework

The new Act now intends to operate despite inconsistent wording in a trust deed, except where the legislation itself permits otherwise. In practical terms, this means the trust deeds now need to be checked against the Act rather than treated as automatically prevailing over it.

Broader powers and clearer duties of trustees

The new Act now expands authority given to trustees. Trustees are now equipped with powers similar to those of an absolute owner of the trust assets, unless the trust deed says otherwise. This is intended to make day-to-day administration more workable and less dependent on long lists of specific powers in the trust deed.

This increased flexibility is particularly relevant for investment and decision-making. Trustees can now delegate certain functions, including investment responsibilities, provided strict requirements are met around documentation, time limits and oversight.

However, this is not a relaxation of responsibility. Quite the opposite.

The Act introduces a clear statutory framework for trustee duties which cannot be contracted out, requiring trustees to:

  • Act honestly and in good faith
  • Exercise appropriate care, skill and diligence
  • Prioritise the interests of beneficiaries
  • Maintain proper records and provide access when requested.

For professional trustees or those with specialist expertise, the expectations are even higher. This reflects a broader theme of the reforms: greater power paired with greater accountability.

 Clearer rules around who can act as trustee

The new legislation also tightens the rules around trustee eligibility and succession.

Under the new Act, a person can generally be a trustee unless they fall into a specific ineligible category. The Act now expressly prevents the following from being appointed as a trustee:

  • A child (under 18).
  • An individual who is insolvent under administration (e.g. a person subject to a bankruptcy order).
  • A corporation that is a “Chapter 5 body corporate” (a company in administration, being wound‑up, or otherwise under external administration).

This means trust deeds no longer need to rely on specific clauses in the trust deeds to exclude minor or insolvent entities.

At the same time, the process for appointing and replacing trustees has been made more practical, particularly where incapacity becomes an issue because the Act builds in statutory fallbacks instead of always requiring a court order.

Trustees can now be appointed by the appointor, by any other mechanism in the deed, or by statutory powers if no one else acts within a reasonable time, and the Act also clarifies who may remove a trustee (e.g., appointor or continuing trustees) where the trustee is unfit, incapable, or unable to act, reducing the need for ad‑hoc court applications.

A particularly useful change arises when a sole trustee loses capacity. Previously, if the deed did not provide for replacement, a court order was often required just to swap in a new trustee. Under the new Act, the attorney or administrator with authority over the last continuing trustee’s financial matters can now appoint a new trustee (including themselves), without needing to go to court first, so long as no other mechanism in the trust is available.

This is a welcome change for many families and business structures, where delays or uncertainty around trustee succession can create unnecessary risk.

Stronger rights and protections for beneficiaries

From a beneficiary perspective, the reforms introduce greater transparency and more meaningful protections.

Beneficiaries now have clearer rights to access trust information as Trustees are required to maintain accurate records and make them available for inspection and copying upon request.  Where necessary, the beneficiary may ask the court to order disclosure.

There is also increased flexibility when it comes to financial support. The statutory allowance for applying capital toward a beneficiary’s maintenance, education, or advancement has increased substantially from the former $2,000 figure. The new threshold is $100,000 or half of the beneficiary’s presumptive entitlement, whichever is greater, which may reduce the need for court applications in many ordinary cases.

Importantly, where distribution issues arise, beneficiaries may now be able to take action directly against recipients of incorrectly distributed assets, rather than navigating more complex recovery pathways.

A more accessible approach to dispute resolution

By explicitly including the District Court into the statutory framework to hear trust-related matters below the $750,000 monetary threshold, the Act aims to make resolving trust disputes more efficient and accessible as not every trust-related application needs to be heard at the Supreme Court.

Furthermore, with expanded jurisdiction, the courts are better equipped to deal with trust-related issues, including appointing or removing trustees and reviewing trustee conduct. This should help reduce time and cost barriers that have historically discouraged parties from seeking resolution.

What you should do in practice

In many cases, these statutory changes will not require a complete overhaul of existing trust arrangements. However, they do create a new baseline for how trusts should be managed. We encourage you to consider taking the following actions now, depending on your capacity or role.

If you are a trustee:

  • Review the trust deed to identify provisions that may no longer operate as expected under the new Act, especially provisions dealing with powers, delegation, records, indemnities, and beneficiary access to information
  • Check and ensure all trustees meet the eligibility requirements under the Act
  • Check whether trust accounts, minutes, and supporting records are complete and kept separately for each trust
  • Review any trustee remuneration, commissions, or related-party payment arrangements to ensure they can be justified if challenged
  • Confirm that there is a practical process for replacing the trustee if a current trustee retires, dies, loses capacity, or becomes insolvent

If you are a family or business owner using a trust:

  • Review any family trust, unit trust, or trading trust used in your business structure to make sure it still achieves the intended commercial and succession outcomes under the new legislation
  • Consider whether the broader trustee powers affect long-term control, succession planning, or asset protection arrangements
  • Obtain legal and tax advice before changing a trust deed, because amendments may have consequences including tax, duty, and estate-planning implications

If you are a beneficiary:

  • Familiarise yourself with your rights obtain trust accounts, records, or explanations from the trustee
  • Seek prompt legal advice if you suspect trust property has been transferred, distributed, or dealt with in a way that may not comply with the trust

The bottom line

The Trusts Act 2025 (Qld) represents a meaningful shift towards clarity, accountability and modern practice.

For trustees, it brings greater flexibility, but also a higher standard of conduct. For beneficiaries, it delivers improved visibility and protection.

As with most legislative change, the opportunity lies in being proactive. A timely review now can help ensure your trust structure continues to operate as intended, without unnecessary risk.

Next steps

If you would like support reviewing your trust deed or understanding how these changes apply to your circumstances, our Wills & Estates team is here to help.

Areas of Expertise

Wills & Estates
Corporate & Commercial
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Wills and Estate Planning Guide

Wills and Estate Planning Guide

Home » Wills, Estates & Trusts

Wills and Estate Planning Guide

Author: Robert Lamb, Anna Huang

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3 min read

8 May 2026

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    Key Takeaways
  • ࠂ
    A complete estate plan should include a valid Will, Enduring Power of Attorney, Advance Health Directive, and updated superannuation nominations to ensure your assets, healthcare, and financial decisions are managed according to your wishes if you lose capacity or pass away.
  • ࠂ
    Estate planning is especially important for business owners, company directors, trustees, and SMSF members, as proper succession planning helps avoid operational disruption, disputes, and uncertainty for those left behind.
  • ࠂ
    Without an estate plan, your estate and personal affairs may be controlled by default legal rules or court-appointed decision-makers, potentially leading to unintended outcomes, family disputes, delays, and increased legal costs.

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Why Estate Planning Matters

When it comes to securing your legacy, caring for your loved ones, and protecting your hard-earned assets, estate planning is essential. It’s not just about what happens after you are gone – it’s about ensuring you remain in control of your personal, financial, and medical decisions if you lose the ability to make them yourself. Whether your circumstances are straightforward or complex, having a clear and legally sound estate plan can make a world of difference for you and your loved ones.

About This Guide
This guide has been created by the Hillhouse team to help you plan with clarity and confidence. Whether you’re creating your first estate plan or updating an existing one, this guide outlines why estate planning matters, what’s involved (including Wills and trusts, Enduring Powers of Attorney, Advance Health Directives, and Superannuation), and what can happen if no plan is in place. It also provides a helpful checklist and key questions to consider before meeting with one of our estate planning experts, so you can make informed decisions and get the most out of your time with us. Above all, this guide is here to help you protect what matters most - your loved ones, your wishes, and your legacy.

A properly structured estate plan can:
- Safeguard your assets for your chosen beneficiaries
- Appoint trusted individuals to manage your personal, medical, and financial affairs if you lose capacity
- Minimise legal disputes, delays, and unnecessary costs for your family
- Provide clarity and reduce emotional stress for those you leave behind.

Without an estate plan, crucial decisions may be left in the hands of the courts – leading to unintended outcomes and complex legal battles. With expert legal guidance, you can ensure your estate is handled according to your wishes.

What Makes Up an Estate Plan?

A comprehensive estate plan is tailored to your individual circumstances, family dynamics, financial situation, and long-term
goals. As a starting point, several key documents and considerations form the foundation of any effective estate plan:

1. Your Will
A Will is the cornerstone of any estate plan. It’s a legal document that outlines your instructions for how your assets and responsibilities should be handled after your death.

Your Will allows you to:
- Nominate beneficiaries – Specify who should receive your property, savings, heirlooms, and other belongings
- Appoint an Executor – Choose someone you trust to carry out your wishes and manage your estate’s administration
- Nominate Guardians – Appoint a trusted person to care for your children and/or pets
- Establish Testamentary Trusts – Protect assets for young or vulnerable beneficiaries by setting up testamentary trusts managed by a Trustee that you nominate.

When Should You Make a Will?
You should prepare a Will while you have full testamentary capacity. If you lose mental capacity – due to illness, injury, or age – you cannot legally create or amend a Will. That’s why planning early is critical. Even if you already have a Will, significant life changes – such as marriage, divorce, birth of a child, or major financial changes – may require updates to reflect your current wishes.

2. Enduring Power of Attorney (EPOA)
An Enduring Power of Attorney allows you to legally appoint someone to make decisions on your behalf if you become unable to do so.

It covers:
- Financial decisions – Managing bank accounts, paying bills, and selling property
- Personal and health decisions – Decisions about your medical treatments, living arrangements, support services, and overall wellbeing.

This document must be completed while you are still mentally capable. It provides peace of mind that someone you trust will be able to step in if something unexpected happens.

3. Advance Health Directive (AHD)
An Advance Health Directive supplements your EPOA and serves as your voice when you can no longer speak for yourself. It allows you to document your medical preferences in advance, ensuring your wishes are known and respected.

It may include:
- Instructions about life-sustaining treatments
- Preferences around palliative care
- Consent or refusal for certain procedures.

This reduces the emotional burden on loved ones and helps medical professionals act in line with your values and preferences.

4. Superannuation and Binding Nominations
Many people are surprised to learn that their superannuation is not automatically covered by a Will. Superannuation funds are governed by separate rules, and unless you have made a Binding Death Benefit Nomination (BDBN), the fund’s trustee has discretion over how your super is distributed.

A BDBN allows you to:
- Direct who will receive your superannuation and any attached life insurance
- Make your wishes legally binding on the superannuation trustee
- Reduce the risk of family disputes or delays in distribution.

Depending on your super fund, your BDBN may have an expiry date. It’s important to regularly review and update your nomination to ensure it remains valid and enforceable and reflects your current circumstances.

Special Considerations for Business Owners and Trustees
Estate planning is even more critical when you have responsibilities beyond your personal life. If you’re involved in a business or act in a fiduciary role, your plan should include who will step into those roles if you are no longer able to do so.

You should specifically address succession planning if you are:
- A director of a company (particularly a private company)
- A trustee of a discretionary or family trust
- A trustee or member of a self-managed superannuation
fund (SMSF).

Failing to plan for these roles can disrupt business operations and lead to confusion or disputes. Proper legal structuring and documentation ensures a smooth transition and protect all involved parties.

What Happens Without an Estate Plan?
If you die without a valid Will – referred to as dying intestate – your estate will be distributed according to a fixed legal formula, which varies between states. This may not reflect your true wishes or the needs of your loved ones.

Unintended outcomes that commonly arises as a result of dying intestate include:
- Assets going to unintended beneficiaries
- Children or dependents receiving insufficient support
- Family disputes over entitlements
- Delays and increased legal costs.

Similarly, without an EPOA or AHD in place, decisions about your health and finances may fall to a court appointed guardian or administrator – someone you might not have chosen yourself.

How to Get Started

Estate planning doesn’t have to be overwhelming. The most important step is simply to start. Here’s a checklist to guide your first conversations with your legal adviser:

Estate Planning Checklist:

  • Draft or update your Will
  • Appoint an Executor and (if applicable) Guardians for your children
  • Create an Enduring Power of Attorney
  • Complete an Advance Health Directive
  • Review your superannuation and make a Binding Death Benefit Nomination
  • Consider trusts for children or vulnerable beneficiaries
  • Identify business succession and trustee responsibilities
  • Discuss your plan with your family to avoid surprises
  • Review your plan regularly, especially after major life events.

Each step helps ensures that you – not someone else – remain in control of your affairs.

Estate Administration: The Process Explained

Estate administration is the process of managing a person’s estate and affairs after they have passed away. If a valid Will exists, the named Executor in the Will carries out this responsibility. If the deceased person did not have a Will, the next of kin will need to apply to the court to be given authority to administer the deceased person’s estate.

Key Steps Include:
1. Notifying Beneficiaries – Locate and inform those named in the Will
2. Identifying Assets and Liabilities – Including property, bank accounts, superannuation, debts, and taxes obligations
3. Applying for Probate or Letters of Administration (if required) – This is the formal legal authority needed to manage the estate
- Probate – If there’s a Will
- Letters of Administration – If there’s no Will or no valid Executor
4. Consolidating or selling assets and paying off debts
5. Lodging final tax returns
6. Creating Testamentary Trusts (if relevant)
7. Distributing the estate – According to the Will or laws of intestacy if no Will exists.

Tip for Executors: Seek legal advice to ensure full compliance with the law and avoid potential personal liability.

Secure Your Legacy Today
A well-considered estate plan is one of the most meaningful gifts you can give your loved ones. It ensures your voice is heard, your intentions are respected, and your legacy lives on in the way you choose.

At our firm, we understand the personal and legal nuances of estate planning. Whether you’re preparing your first Will, updating existing documents, or managing complex business interests, we’re here to support you
every step of the way.

Areas of Expertise

Wills & Estates
Related Posts:
Inheritances, Early Gifts and Family Law: Is What You Receive Really Protected?

Inheritances, Early Gifts and Family Law: Is What You Receive Really Protected?

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Inheritances, Early Gifts and Family Law: Is What You Receive Really Protected?

Author: Robert Lamb

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3 min read

21 Jan 2026

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    Key Takeaways
  • An inheritance is not automatically protected in family law property settlements.
  • The timing and use of an inheritance or early gift can significantly affect how it is treated.
  • Early financial support from parents or grandparents should be clearly documented to avoid future disputes.
  • Proactive advice across Family Law and Wills & Estates can help protect assets and reduce conflict.

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For many families, an inheritance represents far more than money. It can symbolise a lifetime of hard work, family legacy, and the desire to support the next generation. But when relationships break down, inheritances and even early gifts from parents or grandparents, can quickly become one of the most contentious issues in family law and estate disputes.

A common misconception I hear from clients is: “An inheritance is mine — surely it’s protected?”
Unfortunately, in family law, the answer is rarely that simple.

Are inheritances protected in family law?

Ultimately the Court in any Family law matter must make a decision that is just and equitable in all the circumstances and the Court’s powers in this regard are wide.

Depending on the circumstances, an inheritance may:

  • be included in the overall property pool as a financial resource;
  • be excluded entirely but still influence the final outcome; or
  • have no bearing on the final outcome.

What the Court cannot do is ignore it altogether. The general answer is that powers of the Court under the Family Law Act are wide and whilst an inheritance can be taken into account it is usually under very specific circumstances.

 This uncertainty is often what leads to conflict. The person who received the inheritance understandably feels it should remain theirs. The other party may argue it should be shared, particularly if it benefited the relationship or significantly altered the couple’s financial position.

Timing matters but it’s not everything

One of the most important factors the Court considers is when the inheritance was received. Broadly, this may be:

  • before the relationship began;
  • during the relationship; or
  • after separation.

An inheritance received early in a long relationship and used to support family expenses, purchase property, or reduce debt may be treated very differently from an inheritance received after separation and kept entirely separate.

However, timing alone does not determine the outcome. The Court will also look closely at how the inheritance was applied and whether the other party contributed to its preservation or growth.

Early inheritances and family support - a growing issue

An increasingly common scenario we see involves “early inheritances”. Many parents and grandparents are choosing to provide financial assistance while they are alive, helping with school fees, house deposits, or living expenses rather than waiting until their estate is distributed.

It has been widely reported that a significant proportion of private school fees are now paid, at least in part, by grandparents. Often, these payments are later “equalised” through Wills so that other children who did not receive early assistance are treated fairly.

While this approach can make practical sense for families, it can create real legal risk if relationships later break down or such payments are not properly documented.

Was the payment a gift?
A loan?
An advance on an inheritance?

If this is not clearly documented, early financial support can unintentionally become entangled in family law proceedings or even in future disputes between siblings.

What factors will the Court consider?

When determining how an inheritance or early gift should be treated, the Court may consider:

  • the timing of the inheritance or gift;
  • the size of the inheritance relative to the total asset pool;
  • how the funds were used;
  • whether the non-recipient contributed to its preservation or improvement; and
  • the overall contributions of each party and their future needs.

The Court’s role is to reach a just and equitable outcome, not simply to trace where money came from.

Why early legal advice matters

Whether you are:

  • expecting an inheritance;
  • receiving early financial support from family;
  • separating and unsure how an inheritance will be treated; or
  • planning your estate and wanting to protect what you pass on to your children or grandchildren

early legal advice can make a significant difference.

Tools such as Binding Financial Agreements, careful structuring of gifts, clear documentation and well-drafted estate planning documents can help manage risk and reduce future disputes whether inside or outside your family  but they are most effective when put in place before problems arise.

At Hillhouse Legal Partners, our team works closely across Family Law, Wills & Estates and Litigation, allowing us to take a holistic view of your situation and provide advice that is practical, strategic and tailored to your family dynamics.

Final thoughts

Most people want to be generous and assist their children and grandchildren.

Inheritances and family assistance are deeply personal matters. When relationships change, emotions can run high and legal complexity quickly follows.

Understanding your position and planning ahead is the best way to protect both your interests and your family relationships.

If you have questions about how an inheritance, early gift or family support may be treated, or you want to take steps now to safeguard the future, I encourage you to reach out to discuss your options with our team.

Areas of Expertise

Wills & Estates
Family Law
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Capacity – Don’t Leave It Too Late to Make Your Will

Capacity – Don’t Leave It Too Late to Make Your Will

Home » Wills, Estates & Trusts

Capacity – Don’t Leave It Too Late to Make Your Will

Author: Robert Lamb

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3 min read

22 Sep 2025

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    Key Takeaways
  • Don’t wait until it’s too late to make your Will.
  • Capacity issues can create extra risk, stress, and expense.
  • If you’re found not to have capacity, unintended and unwanted outcomes may follow.

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Urgent Wills

As Wills and Estates lawyers, we’re often approached by individuals – or their loved ones – needing an urgent Will.

This usually happens after a recent diagnosis, a serious illness, or even a terminal condition.

In these situations, we may need to ask more probing questions than usual or require additional steps to ensure the Will is valid.

Why Capacity Matters

Before a Will is signed, we have a professional duty to ensure that the person making it:

  • is acting voluntarily,
  • understands what they are doing, and
  • can give proper and lawful instructions.

If a Court later decides the person did not have capacity, the Will can be set aside. That could mean an earlier Will takes effect – or worse, that the strict laws of intestacy apply. Either outcome could lead to results that the Will maker never intended.

What Happens if Capacity Is in Question

Normally, a lawyer will assume that a person making their Will knows what they’re doing. But if there are warning signs, we may need to take extra precautions. Warning signs include if the Will maker:

  • is under significant stress,
  • appears disoriented or confused,
  • misses scheduled appointments,
  • changes or contradicts their instructions,
  • struggles to recall key assets or important details, or
  • has a medical condition or is on medication that affects decision-making.

In those circumstances, as part of our duty to the client and the law, we may:

  • interview the Will maker alone,
  • ask open-ended questions and allow enough time to ensure they understand their estate plan,
  • request a medical certificate regarding capacity (while not conclusive, it can be helpful), or
  • in rare cases, apply to the Court or QCAT for a formal declaration of capacity.

Making Time Now Saves Stress Later

Don’t leave your Will until the last minute. While sometimes there’s no choice, too often a health crisis forces people to act urgently—and by then, it may be too late.

Next Steps

Creating a clear, up-to-date Will is one of the most important steps in estate planning. If you already have a Will, it’s essential to review it regularly. Good times to revisit your Will include:

  • after major life events (marriage, divorce, birth of a child, new assets), or
  • every five years, to ensure it still reflects your wishes.

We’re Here to Help

Preparing a Will is one of the most powerful ways you can protect your family and your legacy. Our experienced Wills and Estates team will guide you through the process, ensuring your wishes are properly documented and legally sound.

Action:  Don’t leave your estate to chance. Contact us today for tailored advice and help with drafting or updating your Will.

Areas of Expertise

Family Law
Retirement & Aged Care
Wills & Estates
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