Legal Matters: Wills, Probate & Defamation
Andrew Bell joins Colin Balewski on 4CRB for a wide-ranging talkback session covering listener questions on Wills, probate thresholds, blended family estate planning, overseas Wills, and the growing importance of Queensland’s defamation laws in a social media world.
Key Topics
- Long Marriages & House Titles: If a house is in one spouse’s name but the Will leaves everything to the other, is a title change necessary?
- Will Update Triggers: Beyond marriage and children: the full range of life events that should prompt a Will review, including EPA updates.
- Blended Family Wills: Can you leave all your estate to your biological child while excluding wealthy stepchildren? The role of the explanatory letter and family provision claims.
- Testamentary Trusts: Protecting a surviving spouse while preventing “sideways inheritance” into a new spouse’s family: when a testamentary trust is the answer.
- Probate in Queensland: Confirmed thresholds: bank accounts over ~$40,000 to $50,000, shares over $15,000, or sole-name real estate all typically require Probate. Current Supreme Court processing time: 14 to 20 weeks.
- Overseas Wills: How cross-border recognition works: Australian mutual recognition across states but overseas Wills depend on the country and circumstances.
- Inherited Shares: Tax and financial implications are for an accountant/financial adviser: not a legal question.
- Solicitor Closing Down: Files go to the Queensland Law Society if a firm closes unexpectedly.
- Defamation Law: What is a publication? The difference between a bad but honest review and a false, defamatory allegation. How the internet changed everything: private groups, text messages, and anonymous posters.
- Defamation & Serious Harm: Queensland’s updated threshold: hurt feelings alone are not enough; serious harm must have occurred or be likely.
Listener FAQ Highlighted In This Episode
Does my house need to be in both names if we both have Wills leaving everything to each other? Not necessarily. A Will leaving everything to the surviving spouse is usually sufficient to transfer the property through the estate. Read our FAQ on when to update your Will .
What are the triggers for updating my Will: beyond marriage? Major asset changes, death of a beneficiary, a change in anyone’s financial circumstances, or a named executor becoming incapacitated are all critical triggers. Read about Will update triggers .
Can I create a testamentary trust to protect my estate from a future spouse’s family? Yes: a Testamentary Trust can ring-fence assets for your chosen beneficiaries, even preventing “sideways inheritance.” Read our FAQ on testamentary trusts .
When is Probate necessary and what are the current thresholds? Probate is generally required where bank accounts exceed ~$40,000 to $50,000, shares exceed $15,000, or real estate is held in the sole name of the deceased. Read our full Probate explainer .
Can a post in a private Facebook group be defamatory? Yes. Courts have found that private group posts constitute a “publication” for defamation purposes. Read our FAQ on defamation and social media in Queensland .
What is defamation, and how do I know if I’ve crossed the line? Defamation requires a publication that causes or is likely to cause serious harm to a person’s reputation. The line is often between an honest account of your experience and an unfounded characterisation. Read our defamation overview FAQ or our Complete Guide to Defamation Law .
Listen to the full discussion above.
[!WARNING] Don’t Let Your Estate Go to the Wrong Family If you have a blended family or complex assets, a standard will is not enough. Without a properly drafted Testamentary Trust or Binding Financial Agreement, your children’s inheritance could easily pass sideways to a new partner’s family.
Contact our Gold Coast wills and estates lawyers today to structure your estate safely.
Key Takeaways
Andrew Bell’s Practical Reminders From This Episode:
- Wills & Property Titles: A Will can transfer property without a prior title change, but keep both current and consistent.
- Probate Thresholds (QLD): Bank accounts >~$50k, shares >$15k, or sole-name real estate generally require Probate. Current wait: 14 to 20 weeks at the Supreme Court.
- Blended Family Letters: Write and store an explanatory letter with your Will. Update it whenever beneficiaries’ circumstances change significantly.
- Defamation Goes Online: Private Facebook groups, text messages, and anonymous posts are all potential defamation. A post made in anger can become a legal notice six months later.
- Solicitor Closing Down: If your solicitor retires or closes without notice, contact the Queensland Law Society to locate your files.
- Update EPAs Too: Any life event that should trigger a Will review should also trigger an EPA (Enduring Power of Attorney) review.
Next week: Andrew will discuss the full defamation process: what happens if you’ve been defamed, or if you receive a letter alleging you have defamed someone.
Listen to the full discussion above.
Annotated Transcript
📋 This transcript has been lightly edited for clarity. Speaker annotations and links to relevant law and FAQ pages have been added to assist readers. Caller names used are as broadcast.
Opening
[Announcer] 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This program provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.
[Colin] Welcome to Legal Matters, and it is a very good morning to Andrew Bell.
[Andrew] Morning. Thanks for having me back, Colin. It’s great to be here.
[Colin] The number this morning is 07 5520 8888. You can also email mail@4crb.com or text 0451 220 893.
Caller 1 — Charles | Wills & Property Titles
🏠 Topic: Whether a title transfer is required where both spouses have Wills leaving everything to each other. Relevant law: Succession Act 1981 (Qld)
[Charles] My wife and I have been married for 61 years. We both have Wills, we both have Powers of Attorney, but the house is in my wife’s name. I know that I can get that corrected, but is there any need if we’ve both got Wills leaving everything to one another?
[Andrew] Congratulations first on 61 years, Charles. My view would be that if her Will is leaving everything to you, then if she dies before you, you can arrange for everything to be transferred into your name as a gift under the Will. So no: I wouldn’t feel that it’s necessary at all.
📎 See also: Probate Process QLD | Tenants in Common vs Joint Tenants
Caller 2 — Adam (via text) | Will Update Triggers
📋 Topic: What events beyond marriage and children should trigger a Will review? Relevant law: Succession Act 1981 (Qld) — ss 14–16 (revocation events)
[Colin] (reading text) Adam asks: In previous programs, you made it very clear that if I get married, I need to update my Will. But if I have children, or if I buy a house, are there other triggers I should be looking for?
[Andrew] Those are very good triggers. It all depends how specific your Will is and what gifts you have. Marriage or de facto is very important because that would potentially change who can inherit. But if, like Charles, you’ve specified that you want the house to go to a particular person, and you then sell the house and buy a different one, and the previous house is named in the Will, then that is a trigger to consider.
Essentially, any life event where either people need more care, you’ve changed major assets that are in the Will, or someone you were donating to has died, those are all events where I would consider pulling out the Will and making sure it’s still relevant and accurate.
[Colin] Perfect. And I would say that that would be for an EPA as well, if you’ve left charge to someone and they’ve become incapacitated or passed away, time to update.
[Andrew] Absolutely, Colin.
📎 See also: When to Update Your Will | Will Update Triggers (QLD) | Enduring Power of Attorney
Caller 3 — Peter | Blended Family Will & Testamentary Trust
👨👩👧 Topic: Excluding stepchildren in favour of a biological child; using a Testamentary Trust to prevent sideways inheritance. Relevant law: Succession Act 1981 (Qld) — s 41 (family provision); Trusts Act 1973 (Qld)
[Peter] A blended family situation, I married a woman with two children. They’ve now grown up. I had them from age five and eight. One has married into a very successful family and will not need any help. The other has also partnered with a very successful fellow. I’m left at home with a daughter who will need a lot of assistance when I’m gone. I want to leave the Will half to my wife and half to my daughter who is my biological daughter. Am I able to do that without leaving consideration for the other children brought into the marriage, as they will also inherit from their father very nicely when he goes? My daughter only has me to get from.
[Andrew] Peter, yes, you can absolutely donate to whoever you want in your Will. The challenge relates to family provision claims. Both of your stepchildren would have the ability, if they believed they weren’t adequately provided for, to make a claim under the Succession Act 1981 (Qld) s 41 .
However, the instruction we often give clients is to write a letter that goes with the Will explaining your circumstances and why you’ve made the decision. The court does want to take into account your wishes, and they also take into account the personal and financial position of those other children. For the reasons you’ve discussed, those both sound reasonable and adequate for providing for someone who needs more care than the others.
I’d also encourage you to have the conversation, it’s not a fun conversation, but it’s better to do it in a non-adversarial context before they feel shortchanged. You may also want to leave them things that have sentimental value rather than just monetary value.
[Peter] (follow-up) If I do leave all my estate in a testamentary trust for my wife and my biological child, is that a smart way to do things? My fear is that if my wife remarries and does not outlive her next husband, there might be claims from that husband’s family into the estate.
[Andrew] It does sound like an appropriate avenue. You’re getting to the point where I think it’s more than general advice I can give here, I’d encourage you to speak to a specialised lawyer in Wills and Estates to make sure it’s structured properly to look after your wife’s needs and your wishes.
📎 See also: Blended Family Will Risks | Testamentary Discretionary Trust | Who Can Challenge a Will (QLD) | Step-children Contesting a Will
Caller 4 — Warren | Probate in Queensland
⚖️ Topic: When is Probate required? Is it required for small estates? Relevant law: Uniform Civil Procedure Rules 1999 (Qld) — Ch 15 (Probate and Administration)
[Warren] My question relates to probate. Can you tell me how it works in Queensland? Is it based on the value of an estate?
[Andrew] Yes, it is based on the value of the estate in Queensland. Essentially, the process is that you need to advertise that the person has passed away. You can’t do Probate if there is no Will, you must have someone named as the executor in an original Will.
[Warren] But it’s a very tiny estate, I was wondering whether it’s a requirement, or if it’s a minimal estate, is it irrelevant?
[Andrew] It’s typically recommended when there’s real estate passing, or there are large bank accounts, say over $50,000 — to go through Probate.
(Andrew subsequently confirmed the detailed thresholds mid-show, see below.)
📎 See also: Probate Process QLD | Probate Timeframe QLD | Executor Duties Explained
Caller 5 — Sarah (via email) | Overseas Will Validity
🌏 Topic: Whether a Will signed and executed overseas is valid in Australia. Relevant law: Succession Act 1981 (Qld) — recognition provisions; Private International Law
[Colin] (reading email) Sarah asks: She and her husband have a Will, but it was written and signed overseas. Is that still applicable or legal here in the country?
[Andrew] In Australia, we have mutual recognition of Wills across the states: so if you had a Queensland Will, you could still execute it in other states. But if it’s from overseas, it depends on the country. I’m also a New York attorney, and in New York there are complicated rules around when a Will can be executed based on whether it was done in another state, where the ordinary residence of the person was, and so on. I think you’d need specific legal advice depending on the country and circumstances.
📎 See also: Overseas Wills, Australian Validity | Interstate EPOA Validity
Caller 6 — Sue | Inherited Shares
💰 Topic: Capital gains implications of selling inherited shares within 12 months.
[Sue] I’m wondering about inherited shares, what are the ramifications of selling them under 12 months?
[Andrew] That’s a financial advice question, I can’t actually give financial advice. I would encourage you to ask an accountant about that one.
[Colin] We do run a couple of financial shows: Finance Forum every second Thursday, Centrelink the first Thursday of every month, and Retirement Living Your Way the second Monday of every month.
⚠️ Note: Capital gains on inherited assets is a financial/tax advice matter. Bell & Senior Lawyers recommends speaking to a qualified financial adviser or accountant. As a general rule, the ATO provides a two-year exemption from Capital Gains Tax on inherited dwellings, but specific advice is essential for shares.
Probate Thresholds, Updated Mid-Show
⚖️ Andrew returned to clarify the precise Queensland Probate thresholds.
[Andrew] I’ve just quickly done some research around Probate. If the bank accounts exceed between $40,000 and $50,000, or there are shares worth more than $15,000, or there is real property in the deceased’s sole name — that’s when you would recommend doing Probate.
The process is that you have to advertise that you’re seeking Probate, contact the Public Trustee to make sure they don’t hold a Will, then send the original Will with some affidavits to the Supreme Court. My recent experience is that it’s taking between 14 and 20 weeks for the Supreme Court to get the paperwork back to you.
📎 Relevant legislation: Uniform Civil Procedure Rules 1999 (Qld) Ch 15; Public Trustee Act 1978 (Qld) See also: Probate Process QLD | Probate Timeframe QLD
Main Topic: Defamation Law in Queensland
📢 Topic: What is defamation? How has the internet changed defamation law? The serious harm threshold. Relevant law: Defamation Act 2005 (Qld) (as amended by the Defamation Amendment Act 2021 (Qld) )
[Colin] Today’s show was all about defamation. What is defamation?
[Andrew] Defamation in Queensland is one of those areas of law that’s been developing over the last couple of years. Essentially, it’s when someone makes a publication (which means, confusingly, either they say something to an audience or write something down) that has the ability to cause significant harm to another person and has caused or is likely to cause that harm.
An example might be a tradie who did work for you. The client could write two things:
- They could say: “I engaged this person, they didn’t turn up on time, they gave me a quote for $400 and charged me $1,000, and the balcony railing fell off in a week” — that would be a bad review, but it would be an honest one.
- Or they could go on and say: “this person is a fraudster who stole from me” — the tradie may then have a claim because other people seeing that review online may decide not to engage them, based on a characterisation that isn’t quite true.
[Colin] So the moment they made a personal determination like “this person is a fraudster,” that’s where it leads to trouble.
[Andrew] Absolutely. You might be able to say “this is the worst service I’ve ever had,” but if you say “this is a fraudulent operation run by criminals” — one could be defamation and the other isn’t.
And it’s also very important because of the internet. People are having conversations that they may have previously had privately and are now putting out there for the world to see. Even private Facebook groups have been shown to lead to defamation cases where people have written things about someone in a closed community that weren’t true and caused significant harm.
[Colin] The internet really changes the paradigm. Before the internet, you might have told three people at a coffee shop. Now you’re potentially defaming them to the entire world.
[Andrew] And the other problem is that it’s a permanent record. People look up and see that someone is a fraudster online, that has a very specific meaning. If you were upset and venting in the pub and didn’t really intend it to have that connotation, there was more leeway. But once you get on Facebook or Twitter, it’s recorded.
And you’re not anonymous online — it is possible for people to get a court order to find out who put those comments online. So you may get a legal notice six months down the line for something you posted in the heat of the moment and completely forgot about.
📎 Relevant legislation: Defamation Act 2005 (Qld) — s 10A (serious harm element, inserted 2021); s 25 (truth defence); s 26 (honest opinion defence) See also: The Complete Guide to Defamation Law | What is Defamation in QLD? | Defamation & Social Media (QLD)
Caller 7 — Brian | Solicitor Closing Down
⚖️ Topic: What happens to client files and documents when a solicitor closes their practice? Relevant law: Legal Profession Act 2007 (Qld) — file custody obligations
[Brian] I’ve been dealing with a solicitor for approximately 25 years, no problems. He has my documents and I happened to meet him in Woolworths and he said, “Oh, by the way, I’ve given the solicitor away.” I thought, who did he send my files to?
[Andrew] If someone closes down a firm or is forced to close down a firm, their files aren’t destroyed, they’d generally be sent to the Queensland Law Society. So if you aren’t able to contact the solicitor and you want access to anything they were holding, I’d encourage you to reach out to the Queensland Law Society and ask them who has custody of your records.
[Colin] And the other approach would be to engage another solicitor and tell them the story, they would be able to dig up the information for you.
📎 Contact: Queensland Law Society — 1300 367 757 | See also: Changing Lawyers Mid-Case
Defamation, Text Messages & Serious Harm
📱 Topic: Can text messages be defamatory? The ‘serious harm’ threshold introduced by Queensland’s 2021 amendments. Relevant law: Defamation Act 2005 (Qld) — s 10A (serious harm); Defamation Amendment Act 2021 (Qld)
[Colin] Text messaging, one of our volunteers believes it’s a very private communication. But it is just like any normal conversation in any environment, isn’t it?
[Andrew] What you send can be recorded and saved, it is generally considered private but it’s not the most secure form of communication. However, you can still defame someone in a text message. If I were to text message someone’s boss accusing them of being an alcoholic, something that was unfounded, and they lost their job because of it, that text message could still be a publication that causes defamation.
[Colin] And defamation doesn’t actually have to have caused financial or reputational harm, it can have the potential to do so. Is that correct?
[Andrew] That’s right. In Queensland they made it harder, it’s not just hurt feelings. You have to prove that serious harm happened or is likely to happen. But that serious harm may be that you’re forced to move out of where you’re living because of embarrassment, or loss of customers if you’re a professional.
📎 Key amendment: Defamation Amendment Act 2021 (Qld) — introduced the ‘serious harm’ test, aligning QLD law with UK defamation reforms. See also: The Complete Guide to Defamation Law | What is Defamation in QLD? | Defamation & Social Media (QLD)
Caller 3 Follow-Up, Peter | Updating the Letter with the Will
📋 Topic: How often should the letter accompanying a Will be updated?
[Peter] You mentioned earlier about someone writing a letter to reflect their intent in the Will, with the blended family. How often should that letter be updated?
[Andrew] I would say as often as it reflects the rationale for your decision making. We would normally store that letter with the Will. It can be updated at any time separate to the Will and can be kept private until needed.
The point is that there is something for the executor to be guided by. If personal circumstances change, say the two happily married wealthy stepchildren get divorced, you may want to reconsider either your Will or the letter. If the letter says “these people are financially secure and don’t need help,” and that turns out to be untrue when you pass, that may be a very valid family provision claim.
I would advise updating any letter as frequently as the circumstances change that are relevant to it.
📎 See also: Blended Family Will Risks | Who Can Challenge a Will (QLD)
Wrap-Up
[Colin] Andrew, defamation, we might have to revisit another day. We’ve got about 12 or 13 other questions on that topic, and it really is of interest with social media the way things work nowadays.
[Andrew] We’ll do that next week. We’ll go through what the process is if you’ve been defamed, or if you receive a letter accusing you of defaming someone else.
[Colin] You can join us again next week at the same time — 9:00 to 9:30, every Tuesday on 4CRB. Andrew from Bell and Senior Lawyers will join us. Call (07) 5532 8777 or visit bellsenior.com.au .
Disclaimer: This is an edited and annotated transcript of the live radio broadcast. Speaker comments have been lightly edited for clarity. Legal commentary and links to legislation and FAQs have been added for educational purposes and do not constitute legal advice. To hear the full unedited version, please listen to the audio file provided at the top of the page.