Attwood Marshall Lawyers Wills and Estates Lawyer Chloe Wilson discusses a recent Queensland Supreme Court decision that underscores the importance of reviewing your Will as your circumstances change – and the serious consequences that can arise if you don’t.
Many people assume their Will only needs updating after significant life events such as marriage, divorce or the birth of children. In reality, more subtle changes such as selling a family home, restructuring assets or moving into a retirement village can make a Will outdated.
The case of Re Herbert (deceased) [2025] QSC 315 highlights how an outdated Will can give rise to uncertainty, prolonged conflict and unnecessary expense, ultimately diminishing the value of an estate that would likely have taken a lifetime to build.
While the Supreme Court of Queensland’s judgment in this case focused mainly on whether an executor had improperly brought an application for directions, the underlying facts of the case provide a clear reminder of why Wills must be reviewed regularly. Although the deceased had intended his children to inherit his property, the property was sold before his death, and his beneficiaries misunderstood the outdated terms of his Will.
Situations like this are not unusual. We regularly see estate disputes arise not because of bad intentions, but because Wills were never updated to reflect how assets were ultimately held.
A Will should be reviewed whenever there is a material change to your assets, relationships or estate structure, especially in blended family situations.
What happened in this case?
Keith Douglas Herbert passed away in 2012, leaving a Will dated January 2007. At the time it was prepared, the Will appeared straightforward and reflected his circumstances.
When Keith made his Will, he owned property that he left to his children from his first marriage. He appointed the senior partner of his solicitor’s firm as executor and trustee and provided for the distribution of the residue of his estate in accordance with the Will’s terms.
However, Keith’s circumstances changed significantly in the years that followed. By 2012, he had entered a retirement village with his second wife, Margaret. The property referred to in the Will had been sold, and the couple entered into a joint licence agreement funded by a $335,000 “incoming contribution.”
Unlike traditional property ownership, retirement village arrangements often involve contractual licence interests rather than real property – something his Will did not account for.
Despite this fundamental change to his asset structure, Keith didn’t update his Will. It continued to refer to property interests and arrangements that no longer existed.
The court found that the Will contained drafting issues, including linking clauses and subclauses that were described as ambiguous and conflicting. Several provisions referred inconsistently to “the property I may own and normally reside in at the time of my death,” without clearly addressing how alternative living arrangements were to be treated.
At the centre of the dispute was the exit entitlement that needed to be released under the retirement village joint licence. Specifically, whether that exit entitlement formed part of the residuary estate or fell within a specific gift intended for Keith’s children from his first marriage.
This ambiguity later led to confusion after Margaret died in 2023, as she had left her estate in a way that was also at odds with the terms of Herbert’s Will, based on incorrect assumptions about the treatment of their assets.
Lessons for executors and trustees
The dispute resulted in prolonged correspondence, strained family relationships and, ultimately, unnecessary court proceedings that ate into much of the residue estate assets.
The judgment also provides important guidance for executors, trustees and legal advisers about when it is appropriate to seek the court’s assistance.
By the time the executor applied to the court for directions, the beneficiaries had already reached an agreement over how the exit entitlement should be distributed. Despite this, the proceedings continued because the executor insisted on a Deed of Release and Indemnity.
The court found this conduct to be unreasonable. The judge concluded that the application was brought to obtain a collateral advantage over another party in the proceedings, rather than to resolve a genuine uncertainty in the administration of the estate, rendering it improper and unnecessary.
As a result, the court dismissed the application and ordered the executor to pay the beneficiaries’ costs on an indemnity basis. Indemnity costs are generally awarded where a court considers that a party’s conduct has been unreasonable, and they provide a higher level of cost recovery for the successful party.
Even aside from the litigation, the estate endured more than a decade of delays and disputes – outcomes that may have been avoided with more explicit testamentary instructions.
A simple Will review when Keith entered the retirement village could have clarified how the exit entitlement was to be treated, potentially avoiding years of uncertainty, cost and family conflict.
The court made it clear that executors should only approach the court when genuinely necessary to obtain guidance, not as a means of exerting pressure on beneficiaries to accept broad release arrangements.
When should you review your Will?
If you are unsure whether your Will still reflects how your assets are currently held, a review is likely overdue.
A Will should be reviewed whenever there is a significant change in your circumstances, including:
- Marriage or divorce: Changes to your relationship status can have a substantial impact on how your estate is distributed. Blended families require particular care.
- Birth of children or grandchildren: New family members may affect beneficiary entitlements, guardianship arrangements, trust structures and the timing of distributions.
- Significant changes to your assets: Selling property referred to in your Will, acquiring new assets, or moving into a retirement village or aged care facility should prompt a review of your Will.
- Death of beneficiaries, executors or guardians: Your Will should be updated to reflect alternative arrangements if someone you have appointed to one of these roles has passed away.
Even in the absence of major life events, a periodic review every three to five years helps ensure your Will continues to reflect your intentions and remains legally effective.
A Will review with an experienced estate planning lawyer typically requires a modest investment of time and cost. By contrast, estate litigation can span several years, incur substantial legal fees, and cause significant emotional distress for those involved.
The Herbert case also demonstrates the personal risks that executors can face when ambiguity leads to unnecessary court proceedings. Keeping your Will up to date helps safeguard not only your beneficiaries, but also the executors you have chosen to administer your estate.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
At Attwood Marshall Lawyers, our specialised Wills and Estates team practises exclusively in estate litigation, estate planning and estate administration.
We work closely with our clients to understand their personal circumstances and develop estate plans that provide peace of mind and protection. From straightforward Will updates to complex testamentary trusts and succession planning for business interests, our team has the expertise to guide you through all your estate planning needs.
For advice on estate planning or to arrange a Will review, please get in touch with our Wills & Estates Department Manager, Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.
Our estate planning lawyers are available for appointments at all our conveniently located offices at Coolangatta, Southport, Robina, Kingscliff, Brisbane, Sydney and Melbourne.
