A Will is one of the most important documents you’ll ever sign, but it’s also one of the easiest to get wrong. In New South Wales, unclear drafting, outdated arrangements, and “surprise” exclusions can lead to significant conflict after death—sometimes ending in a contested estate or a family provision claim.
Why good Will drafting matters (and what can go wrong)
Even when a Will is valid, beneficiaries and family members can still dispute it.
Common triggers include:
- confusion about what the Will actually means
- perceived unfairness (for example, excluding someone without explanation)
- blended families and step-relationships
- changes in assets (like selling property or changes to superannuation)
- informal promises made during life that don’t match the Will
- old Wills that don’t reflect current circumstances
In NSW, the Succession Act 2006 (NSW) governs Wills and family provision claims. While a properly executed Will is a strong starting point, it does not always prevent litigation—especially where an eligible person believes they have not been adequately provided for.
Tip 1: Make sure your Will is legally valid in NSW
A Will generally needs to comply with NSW formal requirements (including execution and witnessing rules). If there are issues with how a Will is signed or witnessed, it can open the door to challenges and uncertainty.
Practical steps:
- ensure the Will is signed correctly and witnessed properly
- avoid handwritten alterations after signing (they may not be effective)
- use one complete, final document—rather than a patchwork of amendments
If there’s any complexity (multiple marriages, family trusts, businesses, international assets), professional drafting is especially important.
Tip 2: Be clear and specific with gifts (especially “who gets what”)
Disputes often arise from ambiguity. Vague or inconsistent wording can force your executor to seek legal advice—or a Court interpretation.
To reduce uncertainty:
- identify beneficiaries clearly (full names and relationship where helpful)
- describe gifts precisely (e.g., specific property, shares, or sentimental items)
- consider what happens if a beneficiary dies before you (substitute beneficiaries)
- ensure the Will is consistent with how assets are actually held (sole name vs joint names)
Where you’re leaving personal items, consider a clear list or structure so sentimental property doesn’t become the battleground.
Tip 3: Choose the right executor (and consider substitute executors_
Your executor is responsible for administering your estate. The wrong appointment can fuel conflict, particularly if the executor is also a beneficiary and family tensions already exist.
Consider:
- appointing an executor who is organised, impartial, and capable
- appointing joint executors only if they can genuinely work together
- always nominating at least one substitute executor
Tip 4: Understand what your Will does not automatically control
Not everything passes under your Will.
Examples that may not form part of your estate:
- assets owned jointly, such as your property (they may pass by survivorship to the other joint owner)
- superannuation (often paid via trustee discretion or binding nominations)
- trust assets (depending on the trust deed and control mechanisms)
A well-prepared estate plan considers these assets alongside the Will so your overall intentions are consistent.
Tip 5: Think carefully before excluding (or heavily reducing) a close family member’s share
In NSW, certain people may be eligible to make a family provision claim under the Succession Act 2006 (NSW) if they believe the Will (or intestacy outcome) fails to make adequate provision for their proper maintenance, education, or advancement in life.
While we have testamentary freedom in NSW and you can leave your estate to whomever you choose, the risk of a claim can increase if:
- you exclude a spouse, former spouse, child, or other close dependant
- you make unequal distributions without context
- you have a blended family and the Will favours one “side” without explanation
A practical risk-management step is to obtain advice about your family circumstances and document your rationale appropriately (where suitable). This won’t “block” a claim, but it can reduce surprise and help clarify intentions.
Tip 6: Consider including reasons (carefully) and keeping good records
A separate signed statement (or well-kept file note) explaining why you have made particular provisions can sometimes help address disputes—especially where family relationships are strained.
However:
- poorly worded reasons can inflame conflict
- overly detailed allegations may invite argument
- the strategy should be tailored to your circumstances
Legal advice is recommended before deciding whether to include reasons and where they should sit (in the Will itself or separately).
Tip 7: Update your Will regularly—especially after major life events
An outdated Will can be almost as risky as having no Will.
You should review your Will after:
- marriage, separation, divorce, or entering a new de facto relationship
- the birth of children or grandchildren
- death of a beneficiary or executor
- buying/selling real estate or major assets
- changes to superannuation, businesses, or family trusts
- significant changes in your relationships or dependency arrangements
Marriage can affect your Will in NSW
In NSW, marriage can revoke a Will unless an exception applies (for example, if the Will was made in contemplation of that marriage). This is a key reason to update your Will when planning a wedding or remarriage, particularly in blended family situations.
Separation is also a trigger for review
Even where a Will remains technically valid, separation often changes what people intend—and failing to update the Will can leave your executor managing an estate plan that no longer fits your circumstances.
Tip 8: Consider a “dispute-minimisation” approach to structure, not just wording
Good drafting is not only about legal validity—it’s also about reducing the emotional and financial cost of conflict.
Depending on your circumstances, you might consider:
- ensuring dependants are appropriately provided for
- using staged distributions (particularly for younger beneficiaries)
- considering a testamentary trust structure where appropriate
- ensuring the plan aligns with superannuation nominations and asset ownership
The importance of getting advice
A DIY Will may seem straightforward, but disputes often arise from technical errors, unclear drafting, or not understanding what falls inside (and outside) your estate.
A properly prepared and regularly updated Will—supported by an overall estate plan—can:
- reduce ambiguity and family tension
- give your executor clear authority and direction
- lessen the risk of a contested estate
- improve the likelihood that your intentions are carried out
Need to update your Will?
If you haven’t reviewed your Will in the last few years—or your circumstances have changed—now is a good time to revisit it. Getting it right today can protect your family from uncertainty, legal costs, and conflict later.
