Queensland vs NSW Wills: What Is the Difference?

Draft for review : current as at 11 September 2026.

A Will is not governed solely by the address written on the document. The applicable succession law may depend on where the person lived, where the Will was signed, where assets are located, the type of asset involved and which court is required to administer the estate.

The difference between Queensland and NSW Wills is therefore more complex than using a different template. Queensland succession law is primarily governed by the Succession Act 1981 (Qld), while New South Wales succession law is primarily governed by the Succession Act 2006 (NSW).

The two systems share important principles, but they differ in areas including:

• Execution and witnessing;

• Intestacy, where a person dies without a valid Will;

• Family provision claims;

• Treatment of jointly owned property;

• Probate and estate administration; and

• The practical obligations of executors.

Queensland and NSW Wills: the governing legislation

The principal legislation is:

• Succession Act 1981 (Qld); and

• Succession Act 2006 (NSW).

These Acts regulate the formal requirements for Wills, intestacy and claims for further provision from an estate. Property, trust, superannuation and tax laws may also affect what happens to a person’s assets.

A Will prepared in Queensland is not automatically ineffective merely because the Will-maker later moves to New South Wales. Similarly, a NSW Will is not automatically invalid if the Will-maker later moves to Queensland. However, relocation should generally prompt a review of the Will and related estate-planning documents.

1. Execution and witnessing requirements

Both Queensland and NSW generally require a Will to:

• Be in writing;

• Be signed by the Will-maker, or by another person at the Will-maker’s direction and in their presence;

• Have the signature made or acknowledged in the presence of at least two witnesses present at the same time; and

• Be attested and signed by the witnesses in the presence of the Will-maker.

The relevant Queensland requirements are principally found in section 10 of the Succession Act 1981 (Qld). The NSW requirements are principally found in section 6 of the Succession Act 2006 (NSW).

Although the basic requirements are similar, the consequences of errors can be significant. Problems may arise where:

• Only one witness signs;

• The witnesses are not present together;

• The Will-maker does not clearly acknowledge their signature;

• A witness signs in the wrong place or at the wrong time;

• A beneficiary, or the spouse of a beneficiary, acts as a witness; or

• The document contains handwritten changes that were not properly executed.

A Will can sometimes be admitted to probate despite non-compliance with formal requirements, but this usually requires a court application and evidence about the deceased’s testamentary intentions. It is not a substitute for signing and witnessing the Will correctly in the first place.

The rules relating to electronic signing, remote witnessing and informal documents are technical and may change. In-person signing with two independent adult witnesses remains the safest practical approach unless a solicitor confirms that another method is legally available and appropriate.

2. What happens if a person dies without a Will?

A person who dies without a valid Will is described as dying intestate. A person may also be partially intestate if their Will does not effectively deal with all of their assets.

Queensland and NSW both have statutory formulas that generally prioritise a spouse or de facto partner and children. However, the detailed formulas are not identical. The result can depend on:

• Whether the deceased had a spouse or de facto partner;

• Whether there were children;

• Whether the children were from the current or a former relationship;

• Whether there was more than one spouse or partner recognised by the legislation;

• The value and type of estate assets; and

• Which state’s intestacy provisions apply.

The practical impact can be substantial. A statutory intestacy formula may not reflect the deceased’s actual wishes, particularly in blended families or where one child has received substantial financial support during the deceased’s lifetime.

The rules also extend beyond spouses and children. If no eligible spouse, partner or child survives, the estate may pass to other relatives in a statutory order. If no eligible relatives can be identified, the estate may ultimately pass to the Crown.

A valid Will allows the Will-maker to nominate beneficiaries and appoint an executor rather than leaving distribution entirely to a statutory formula.

3. Family provision claims

Both Queensland and NSW permit certain eligible people to ask a court for further provision from an estate. These claims may arise where the applicant says that the Will, or the intestacy distribution, did not make adequate provision for their maintenance, education or advancement in life.

The eligibility rules and court considerations differ between the states.

In Queensland, potential applicants may include a spouse, de facto partner, child, stepchild in certain circumstances or dependant. Applications are made under the family provision provisions of the Succession Act 1981 (Qld).

In NSW, the eligible-person categories under Chapter 3 of the Succession Act 2006 (NSW) include spouses, de facto partners, former spouses, children and certain dependants or people in a close personal relationship with the deceased.

The time limits also differ. In Queensland, an eligible person will commonly need to notify the executor within six months of death and commence proceedings within nine months, although the precise circumstances and any possible extension should be confirmed urgently. In NSW, a family provision application is generally required within 12 months of death, subject to the court’s power to extend time.

These deadlines are important. An executor should not assume that an estate can safely be distributed simply because the Will appears clear.

4. NSW notional estate and the Queensland position

One of the most important differences between Queensland and NSW succession law is the NSW notional estate regime.

In NSW, the court may, in specific circumstances, designate certain property as part of the notional estate for the purpose of satisfying a family provision order. This property may no longer be owned by the deceased at death. Depending on the facts, the regime can be relevant to property transferred before death, assets held through certain arrangements and some property that passes automatically by survivorship.

Queensland does not have an equivalent statutory notional estate regime. Queensland family provision claims generally focus on the deceased’s actual estate, subject to the operation of other legal principles.

This does not mean that a NSW person can avoid all estate claims by transferring assets before death, or that a Queensland estate is immune from challenge. Transactions may raise other issues, including undue influence, sham arrangements, breach of duty or questions about ownership. The key point is that NSW gives the court a specific statutory mechanism that does not operate in the same way in Queensland.

5. Jointly owned property

A Will does not control every asset a person owns.

In both Queensland and NSW, property held as joint tenants will generally pass automatically to the surviving joint tenant by survivorship. The deceased’s interest will usually not form part of the estate available for distribution under the Will.

Property held as tenants in common is treated differently. The deceased’s share generally forms part of the estate and can pass under the Will or the applicable intestacy rules.

The title structure should therefore be checked when preparing or reviewing a Will. This is particularly important for:

• The family home;

• Investment properties;

• Rural land;

• Shares and business interests;

• Bank accounts; and

• Assets held with a spouse or other family member.

In NSW, the notional estate provisions may affect the analysis in some family provision disputes involving assets that have passed outside the estate. In Queensland, the ordinary survivorship rules generally have a stronger effect on whether jointly owned property forms part of the estate.

Superannuation, life insurance and trust assets may also pass outside the Will, depending on the relevant nomination, ownership structure and governing documents.

6. Executors and probate

An executor is the person appointed by the Will-maker to administer the estate. The executor’s responsibilities may include:

1. Locating and proving the Will;

2. Identifying estate assets and liabilities;

3. Applying for probate where required;

4. Protecting and collecting estate assets;

5. Paying valid debts and expenses;

6. Addressing tax and administrative requirements; and

7. Distributing the estate to beneficiaries.

In Queensland, probate and other grants are dealt with through the Supreme Court of Queensland. In NSW, the relevant jurisdiction is the Supreme Court of New South Wales.

The forms, filing procedures, court fees and supporting evidence differ between the states. Where a person owns assets in both Queensland and NSW, the executor may need to consider whether a grant obtained in one state must be recognised, resealed or supplemented before assets in the other state can be dealt with.

The executor should also identify the state in which the deceased was domiciled, the location of land and the nature of each asset. A single Will may cover assets across Australia, but estate administration is not necessarily a single-state process.

Should a Queensland Will be reviewed after moving to NSW?

A review is sensible after moving interstate, particularly where the person:

• Buys or sells real estate;

• Marries, separates or enters a de facto relationship;

• Has children or grandchildren;

• Establishes a blended family;

• Changes the ownership of property;

• Becomes a trustee or beneficiary of a trust;

• Changes superannuation nominations;

• Appoints an executor who lives interstate; or

• Creates or disposes of a business.

A Will review should consider the Will itself as well as enduring powers of attorney, health or guardianship documents, superannuation nominations, property ownership and any testamentary trust structure.

Queensland Will advice from Lightning Legal

Lightning Legal provides fixed-price Queensland Will and estate-planning services, including professionally drafted Wills, testamentary trusts and related Queensland estate-planning documents.

Queensland residents can learn more about the Lightning Legal Wills and Estate Planning service, review pricing or contact Lightning Legal.

This service is directed to Queensland legal matters and should not be treated as NSW legal advice. A person living in NSW, or a person with substantial NSW assets, should obtain advice from a solicitor qualified to advise on the relevant NSW issues.

General information disclaimer

This article provides general information only and is not legal, financial or tax advice. Succession law is fact-specific, and legislation, court procedures and time limits may change. The applicable law may depend on residence, domicile, the location and ownership of assets, the terms of the Will and the circumstances of the deceased.

A person should obtain current legal advice before making, signing, revoking or relying on a Will.