A deployment order can arrive with little warning, and the legal arrangements that protect a family while a member is away are rarely the first thing anyone thinks about. A will that has never been updated, or an enduring power of attorney that was never made, can leave a partner unable to deal with property, bank accounts or urgent financial decisions in Queensland while the member is serving overseas.
Queensland's succession law and the rules governing enduring powers of attorney are clear about what happens when these documents are missing or out of date. The Queensland Public Trustee notes that fewer than half of Queenslanders aged 40 to 60 have a will, and the gap is sharper for ADF personnel whose circumstances, postings and family arrangements change frequently. A will sets out who receives an estate; an enduring power of attorney appoints someone to make financial and personal decisions if the member cannot make them, whether because of injury, incapacity or simply being unreachable overseas.
Our solicitors in Springfield and Ipswich help clients across Greater Springfield with wills, enduring powers of attorney and advance health directives, including ADF members preparing for a posting or deployment.
Here is how these documents work under Queensland law and what the deployment window means for getting them right.
Key takeaways
- A will that predates marriage or a change in family is likely to be revoked or out of date.
- An enduring power of attorney continues even when the principal lacks capacity or is unreachable.
- Defence Counsel Services can prepare a simple will for members at no cost before deployment.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
Why does a deployment create a legal gap in Queensland?
Deployed ADF personnel face a practical problem that most Queenslanders do not: they may be unreachable, in a time zone that makes contact difficult, or in a situation where making financial or medical decisions from overseas is simply not possible. Under Queensland law, a partner or family member has no automatic legal authority to act on the member's behalf without the right documents in place.
The Queensland Government explains that without an enduring power of attorney, an application may need to be made to the Queensland Civil and Administrative Tribunal to have a guardian or administrator appointed, which takes time, costs money and may not produce the outcome the family wanted. For a home loan repayment, a contract that needs to be signed or a medical decision that cannot wait, that delay is the gap a deployment exposes.
A will addresses a different but equally serious question. Under Queensland's Succession Act, if a member dies intestate, meaning without a valid will, the estate is distributed according to a fixed order set by law. The Queensland Public Trustee notes that the order runs from spouse and children through to first cousins, and that in-laws, stepparents and stepchildren are not included unless they are covered by the Succession Act's own definitions. A blended family, a de facto relationship of fewer than two years, or a wish to leave something to a person outside the standard order will not be reflected without a current will.
The Queensland Government recommends getting independent legal advice before making an enduring power of attorney, and the ADF Financial Services Consumer Centre notes that a simple will can be prepared by Defence Counsel Services for members at no cost.
What does a will actually do under Queensland law?
A will is a legal document that sets out who receives an estate and on what terms, according to the Queensland Public Trustee. It can name beneficiaries and gifts, address personal and family items, record funeral wishes, name a legal guardian for children under 18, appoint an executor, and establish trusts for children or others who may need ongoing support.
Under Queensland's Succession Act, a will must be in writing and signed in the presence of two witnesses who are both present at the same time. Those witnesses should not benefit under the will. Marriage revokes an existing will unless it was made in contemplation of that marriage, according to the Act. Divorce revokes gifts to a former spouse and their appointment as executor, as if the former spouse had died first, unless the will shows a contrary intention.
For ADF members, this matters because postings, relationships and family arrangements change. A will made before a marriage, before the birth of a child or before a de facto relationship formed may no longer reflect the member's wishes, or may have been revoked by operation of law without the member realising it.
The Queensland Public Trustee also notes that the estate cannot pass by will to people who are not in the will, and that a will can only deal with property the person actually owns. Assets held as joint tenants pass automatically to the surviving owner and do not go through the estate; superannuation generally does not pass under a will unless the nomination directs it to the executor.
"A will made before a marriage is generally revoked by that marriage under Queensland's Succession Act, which means many ADF members are effectively without a will without knowing it."
Jade Kickbusch, Principal, Brookwater Legal
What is an enduring power of attorney and why does it matter on a deployment?
An enduring power of attorney is a legal document in which the principal appoints one or more trusted attorneys to make financial or personal decisions, and it continues even if the principal loses capacity or is otherwise unable to act, according to the Queensland Government. This is what makes it different from a general power of attorney, which ends if the principal's capacity is lost.
For financial matters, an attorney appointed under an enduring power of attorney can pay expenses, manage investments and deal with property, including the family home, according to the Queensland Government. For personal matters, the attorney can make decisions about where the principal lives and what support services they receive. Health decisions can also be included.
The Office of the Public Guardian sets out who can be an attorney: the person must be over 18 with decision-making ability, must not be a paid carer now or in the past three years, and must not be the principal's health provider. Multiple attorneys can act jointly, individually or by majority. The Queensland Government notes that an attorney appointed under an enduring power of attorney may need to register it with Titles Queensland if they are dealing with Queensland property, including selling or mortgaging the family home while the member is away.
The ADF Financial Services Consumer Centre notes that a power of attorney might be appointed for a specific purpose, such as to sign documents for selling a house, or for a specified period to cover a deployment. Before appointing an attorney with broad authority, independent legal advice is recommended by the Queensland Government.
- › Financial decisions: paying bills, managing bank accounts, dealing with investments and selling or mortgaging property.
- › Personal decisions: where the principal lives, what support services they receive, and legal matters unrelated to finances.
- › Without one: QCAT may need to appoint a guardian or administrator, which takes time and may not match the member's wishes.
How does a solicitor help ADF personnel prepare these documents in Queensland?
Step 1: Talk to us
Get in touch and we'll explain how wills and enduring powers of attorney work under Queensland law and what the deployment timeline means for getting them done.
Step 2: Understand the documents and identify the right people
We go through the member's current situation, including family arrangements, assets held in Queensland, any existing will or power of attorney, and who the right executor, attorney and guardian nominations are given the member's circumstances.
Step 3: Prepare and execute the documents
We prepare the will and the enduring power of attorney documents in the correct Queensland form and arrange witnessing with a qualified witness. The Office of the Public Guardian confirms that the short form is used where one attorney or the same attorneys are appointed for both personal and financial matters, and the long form where they differ. We ensure the witnessing requirements under Queensland law are met before any deployment date.
Step 4: Store and register where needed
We advise on certified copies to attorneys, a doctor, a bank and the member's file. Where the enduring power of attorney will be used to deal with Queensland property, we arrange registration with Titles Queensland. The ADF Financial Services Consumer Centre also notes that Defence stores wills prepared by Defence Counsel Services.
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When does the intestacy order apply, and who does it leave out?
Dying without a valid will in Queensland means the estate is administered under the intestacy rules in Queensland's Succession Act, according to the Queensland Public Trustee. The distribution follows a fixed order: spouse and children first, then parents, siblings, nephews and nieces, grandparents, and uncles and aunts. The outer limit is first cousins; an estate cannot pass to relatives more remote than that.
Several groups are excluded by the intestacy rules. In-laws, stepparents and stepchildren are not next of kin for these purposes, according to the Queensland Public Trustee. A de facto partner is treated the same as a spouse, but only where the relationship existed continuously for at least two years ending on the deceased's death. A relationship of shorter duration, or a new relationship that has not yet reached two years, would not qualify.
For ADF families, this can produce results the member never intended. A long-term partner who does not meet the two-year threshold, a child from a previous relationship, a close friend or a person the member was supporting financially may receive nothing. A current will is the only way to direct what happens.
The Queensland Public Trustee also notes that a beneficiary must survive the deceased by at least 30 days to share in the estate under the survivorship requirement, and that where no relatives can be found, the estate goes to the Government.
When does making a will not solve the whole problem?
A will alone does not cover every asset, and this is a common misunderstanding for ADF members who believe their estate is sorted once the document is signed.
Assets a will does not automatically govern:
- › Joint tenancy property: passes automatically to the surviving joint tenant by survivorship, not through the estate, according to Titles Queensland.
- › Superannuation: generally does not pass under a will. The fund trustee decides who receives the benefit, or follows a binding nomination where one is in place, according to the Australian Taxation Office.
- › Commonwealth Superannuation Corporation schemes: MilitarySuper, DFRDB and ADF Super are administered by the Commonwealth Superannuation Corporation. A superannuation splitting arrangement in a family law matter is a separate process from a will.
A comprehensive approach combines the will with a current superannuation beneficiary nomination reviewed directly with the fund, and an enduring power of attorney covering the decisions that need to be made while the member is alive but unreachable or incapacitated. Moneysmart's separation checklist also includes reviewing super beneficiary nominations as a separate step from updating a will, and the same principle applies before a deployment.
Frequently Asked Questions
Can an ADF member make a will after receiving a deployment order in Queensland?
Generally, yes. Under Queensland's Succession Act, any adult with testamentary capacity can make a will, and the ADF Financial Services Consumer Centre notes that Defence Counsel Services can prepare a simple will for members at no cost before deployment.
Does marriage revoke an ADF member's existing will in Queensland?
Under Queensland's Succession Act, marriage revokes a will unless it was made in contemplation of that marriage. A member who married after making their last will generally has no valid will.
What happens to a Queensland property if an ADF member dies without a will and has a de facto partner?
Under Queensland's Succession Act, a de facto partner has the same rights as a spouse on intestacy, but only where the relationship existed continuously for at least two years ending on the death. A shorter relationship generally receives nothing through the intestacy rules, according to the Queensland Public Trustee.
Can an attorney under an enduring power of attorney sell a Queensland property while the member is deployed?
Financial matters under an enduring power of attorney include selling or mortgaging property, according to the Queensland Government. Where property is involved, the enduring power of attorney generally needs to be registered with Titles Queensland before the attorney can act on Queensland land.
Does superannuation pass under an ADF member's will in Queensland?
Generally not automatically. The fund trustee decides who receives superannuation, or follows a binding nomination if one is in place, according to the Australian Taxation Office. A will does not control the super balance unless a binding nomination directs it to the executor.
Do ADF members in Springfield or Ipswich QLD need a civilian solicitor, or does Defence cover wills and powers of attorney?
Defence Counsel Services can prepare a simple will for members at no cost, according to the ADF Financial Services Consumer Centre. For more complex arrangements, blended families, Queensland property decisions or a tailored enduring power of attorney, a civilian solicitor can advise on wills and estates under Queensland law.
How often should an ADF member review their will and enduring power of attorney in Queensland?
The Queensland Public Trustee recommends reviewing a will after major life events, including marriage, a new de facto relationship, the birth of a child, a significant financial change or a change in who the executor or attorney is. The Office of the Public Guardian suggests reviewing an enduring power of attorney every two to three years.
Your Next Steps
For ADF personnel in Ipswich and Greater Springfield, getting a will and enduring power of attorney right before a deployment is one of the clearest ways to protect a family against uncertainty. Queensland succession law does not fill the gaps that a missing or outdated document leaves, and the window before a posting closes faster than most people expect.
If you're working through wills and powers of attorney ahead of a deployment, the right advice early makes the process simpler. Contact the Brookwater Legal team or call (07) 3437 8555 to talk through where you stand.
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External Resources
- Queensland Government – Understanding enduring powers of attorney
- Queensland Government – Understanding advance health directives
- Office of the Public Guardian – Enduring power of attorney
- Queensland Public Trustee – About wills
- ADF Financial Services Consumer Centre – Having a Will and Power of Attorney
- Queensland Legislation – Succession Act 1981
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
