Moving from Queensland to NSW? Why You Should Review Your Will
Draft for review : not published or scheduled.
Moving interstate involves more than changing an address. A move from Queensland to New South Wales can affect property ownership, executor arrangements, powers of attorney, family provision exposure and the practical administration of an estate.
A common question is: does a Queensland Will work in NSW?
A properly executed Queensland Will may remain legally effective after the Will-maker moves to NSW. Relocation does not automatically cancel or invalidate the Will. However, moving to another state is a strong reason to review the Will and the wider estate plan.
Queensland and NSW have different succession legislation and estate-administration procedures. A Will that was suitable when a person lived in Brisbane, Ipswich, Logan or the Gold Coast may not fully address their circumstances after moving to Sydney, Newcastle, the Central Coast or another NSW location.
Does a Queensland Will work in NSW?
In general, NSW law can recognise a Will made in another jurisdiction if it was valid under the law that applied when it was made. Section 48 of the Succession Act 2006 (NSW) contains rules dealing with the recognition of Wills made outside NSW.
A Queensland Will will usually have been prepared and signed with reference to the Succession Act 1981 (Qld). Queensland Will formalities generally include:
the Will being in writing;
the Will-maker signing the document;
two witnesses being present when the Will-maker signs or acknowledges their signature; and
the witnesses signing the Will in the Will-maker’s presence.
The Queensland Law Handbook explains the usual execution requirements and the risks associated with informal Wills.
Recognition of the document is only one part of the issue. The more important question is whether the Will still reflects the person’s family, assets, wishes and legal circumstances after the move.
1. Domicile and the law applying to the estate
A person’s state of residence is relevant, but it is not the only factor. Estate matters can involve questions of domicile, the location of assets, the circumstances of the family and where the estate is administered.
If a person moves permanently from Queensland to NSW, they may eventually be regarded as domiciled in NSW. This can make NSW succession rules more relevant, particularly in relation to:
family provision claims;
the administration of the estate;
probate or other court procedures;
property located in NSW; and
transactions or structures connected with NSW.
This does not mean that every provision of NSW law will automatically override the Queensland Will. It means the estate should be reviewed as a whole rather than relying only on the fact that the original Will was validly signed.
2. NSW and Queensland family provision rules differ
Both Queensland and NSW allow certain people to ask a court for further provision from an estate. These claims are often referred to as family provision applications.
The categories of eligible applicants, applicable time limits, court processes and factors considered by the court are not identical between the two states.
NSW has a significant additional feature: notional estate provisions. In appropriate circumstances, the NSW Supreme Court can take certain property or transactions into account when determining a family provision claim, even where the relevant asset is no longer held directly in the deceased person’s name.
This can create planning issues where a person has:
transferred assets before death;
established trusts;
changed ownership of property;
made significant gifts;
directed superannuation death benefits; or
arranged assets in a way intended to keep them outside the estate.
Notional estate rules do not mean that every lifetime transfer will be reversed or included. Their application depends on the statutory requirements and the facts of the particular estate. However, a person moving to NSW should understand that the family provision environment may differ from the one that applied while they lived in Queensland.
A Queensland Will should therefore be reviewed where there are estranged family members, adult children, a former spouse, a blended family, dependants with additional needs or a concern that someone may challenge the estate.
3. Property ownership may not follow the Will
A Will does not control every asset a person owns.
The ownership structure of real property is particularly important. Property may be held as:
joint tenants, where the interest generally passes to the surviving joint tenant by survivorship; or
tenants in common, where the deceased person’s share generally forms part of the estate and may pass under the Will.
The law of the state where land is located can also affect the transfer and administration of that property. A person who owns a Queensland home and purchases a NSW property should have both holdings reviewed.
The review should confirm:
how each property is owned;
whether the ownership structure reflects the intended beneficiaries;
whether there are mortgages or guarantees;
whether a property is held through a company or trust;
whether a testamentary trust is appropriate; and
whether the Will contains suitable provisions for each asset.
Lightning Legal’s Wills and estate planning service provides a useful starting point for reviewing how property fits within an overall estate plan.
4. The location of the executor matters
A Queensland executor can potentially administer an estate involving NSW assets. However, the arrangement may be less efficient if the executor lives far away or is unfamiliar with NSW procedures.
An executor may need to:
locate the original Will;
identify bank accounts, investments and insurance policies;
communicate with beneficiaries;
deal with government agencies and financial institutions;
arrange property maintenance and insurance;
apply for probate if required; and
sell or transfer property.
After moving to NSW, a Will-maker should consider whether the nominated executor remains the right person. A practical alternative may be:
a trusted NSW-based family member;
two executors who can work together;
a professional executor or trustee company; or
a substitute executor if the first choice cannot act.
The executor’s location does not automatically determine whether the Will is valid. It can, however, affect cost, delay and the practical administration of the estate.
5. Review guardianship wishes for children
Parents who move interstate should review any provisions dealing with the care of minor children.
A Will can record the parent’s wishes about who should care for children if both parents die. Those wishes are important, but they do not operate in isolation. A court will consider the child’s best interests and the relevant legislation and circumstances at the time.
The review should address:
proposed guardians;
alternative guardians;
the location of the guardians;
the children’s schooling and support network;
financial arrangements for the children; and
whether a testamentary trust should hold inherited assets.
A move may change the practical suitability of the nominated guardian. Someone who was nearby in Queensland may no longer be able to provide day-to-day support after the family relocates to NSW.
6. Update the Enduring Power of Attorney
A Will operates after death. An Enduring Power of Attorney operates while a person is alive and unable to make or communicate certain decisions.
Queensland and NSW have different legislation and documentation for powers of attorney and related substitute decision-making arrangements. Interstate recognition can be technical, and banks, health providers or government bodies may request additional evidence before accepting an interstate document.
A person moving from Queensland to NSW should ask whether:
the existing Queensland Enduring Power of Attorney remains suitable;
the nominated attorney still lives close enough to assist;
the attorney understands the person’s financial arrangements;
the document covers the decisions required;
a NSW Enduring Power of Attorney should be prepared; and
separate arrangements are needed for personal or health decisions.
An Enduring Power of Attorney should be reviewed at the same time as the Will, rather than treating the Will as the complete estate plan. Lightning Legal has also published information about Enduring Powers of Attorney as part of incapacity planning.
7. Check superannuation and insurance nominations
Superannuation does not automatically form part of a deceased person’s estate. The trustee of the superannuation fund generally determines who receives a death benefit, subject to the fund rules and any valid nomination.
A move from Queensland to NSW does not automatically update:
a binding death benefit nomination;
a non-binding nomination;
a reversionary pension nomination;
a life insurance beneficiary nomination; or
the nominated recipient of a superannuation benefit.
The nomination should be checked against the Will. For example, a person may intend for superannuation to be paid to their estate so it can be managed under a testamentary trust, but the current nomination may direct it elsewhere.
Superannuation nominations also have their own validity periods and requirements, depending on the fund. The fund’s rules should be checked directly.
Practical interstate Will review checklist
After moving from Queensland to NSW, a Will-maker should consider obtaining advice about:
Whether the Queensland Will was properly executed.
Whether the Will still reflects current family relationships.
Whether the executor and substitute executor remain appropriate.
Whether property is held jointly or as tenants in common.
Whether assets are held in Queensland, NSW, a trust or a company.
Potential NSW family provision and notional estate issues.
Guardianship wishes for minor children.
Enduring Power of Attorney and substitute decision-making documents.
Superannuation and insurance nominations.
The safe storage and location of the original Will.
A Will does not automatically become invalid because its maker moves interstate. Nevertheless, the cost of reviewing the document is generally modest compared with the cost and delay that can arise when an estate plan is unclear, outdated or difficult to administer.
Conclusion
A properly executed Queensland Will may continue to operate after a move to NSW. That does not mean it should be left unreviewed.
Changes in domicile, property ownership, executor location, family circumstances and incapacity documents can all affect how the estate plan works in practice. NSW family provision and notional estate rules may also create different risks from those faced by a person who remains based in Queensland.
Lightning Legal can assist with reviewing Wills, Enduring Powers of Attorney and related estate-planning documents. The appropriate next step is to obtain advice based on the individual’s family circumstances, assets, property ownership and intended beneficiaries.
This article provides general information only and is not legal advice. It does not determine whether a particular Queensland Will is valid or how a future estate would be administered. Interstate succession law can be fact-specific. Tailored advice should be obtained from a qualified solicitor familiar with the relevant Queensland and NSW laws.
Further reading
Comments