Time to read : 6 Minutes
I’ve witnessed first-hand how messy things can get when a person has died with no will. Even if a will has been made, there’s a chance it may be deemed invalid or contested in court.
Simple mistakes can lead to a loved one missing out on their inheritance. It can also open the door for your will to be challenged… or made void altogether.
More than half of Australia’s adult population doesn’t have a valid will.
Without a will, your loved ones may not be adequately provided for after your passing.
The other risk is the people you want to receive part of your estate could miss out if your intentions weren’t made clear.
Here are the seven most common mistakes people make when writing their will – key errors you can avoid when making yours.
1. Not keeping the will up-to-date
It’s common for a person to make a will decades before their passing. During that time, the will-maker will likely encounter significant life events and relationship changes. People often underestimate how these big life events can affect the distribution of their estate when they die. It’s important to either make a will – or update an existing one – to reflect in light of major life events such as:
marriage or divorce
the birth of another child or grandchild
an estrangement
the death of a loved one
buying property or a significant purchase like a boat or vehicle, or
some other significant investment.
Be aware: divorce does not automatically or completely revoke a will or deem it invalid. An estranged spouse can legally benefit from an ex-partner’s estate if an existing will lists them as a beneficiary and the document had not been updated before the time of passing.
If you intend to leave your estate to your children but are in a new relationship, you should update your will to specify what – if anything – you wish to leave your new partner and what should go to your kids.
If your spouse isn’t provided for in your will, they could contest it and the Supreme Court may grant them a significant portion of your estate.
2. Providing specific details
While you’ll want to be thorough with your wishes, being too specific can also be problematic if specified gifts are sold, lost, damaged or given away over the years.
Let’s say your will states for your BMW to be left for your eldest child, but it has been sold or written off since the will was made.
Disputes may arise if a beneficiary cannot receive the gift they had been promised in the will, particularly if other beneficiaries receive their specified gifts.
You can simply get around this by being more general with the details of certain assets. Instead of writing “my black BMW”, use language such as “the car that is in my name”.
3. Electing the wrong executor
The job of an executor shouldn’t be taken lightly, as there’s a lot of work to do in administering a deceased person’s estate.
An executor is responsible for taking ownership of the deceased estate and distributing the assets to the beneficiaries as instructed in the will. Executors will also be responsible for arranging and paying for the funeral and other administrative expenses of the deceased.
You may name more than one executor to either act jointly or severally. You should also appoint a back-up executor in case a primary executor is unable to act at the time of your death, or if they pass away before you.
If you don’t feel confident entrusting a family member or friend with such an important task, you may instead appoint a solicitor or trustee. Before doing so, you should weigh up the associated fees with the size of the estate.
Once you have decided on an executor, it’s a good idea to let them know so they aren’t caught off guard when the time comes. If they don’t feel comfortable with the responsibility, they can let you know now so you have the opportunity to appoint an alternate executor.
Be aware: choosing the right executor is vital to ensuring your estate is properly distributed. Nominating the wrong person or people for such an important job could cost the estate time and money, and potentially lead to disputes.
4. Signing the will incorrectly
A will does not become a legally binding document until it is signed by the will-maker in the presence of two witnesses.
The witnesses don’t need to know the contents of the will – or that it is a will they’re witnessing – but all three parties must be physically present at the time of signing the will. The witnesses must both be aged 18 or over and watch each party sign the document.
A will may be considered invalid if the will-maker and the witnesses use different pens to sign.
Essentially, if a will is not signed by all three parties at the same time, it’s simply not valid.
5. Not informing anyone about your will
Making a will and having it signed and witnessed correctly are vital steps to creating a legally binding document, but the effort is pointless if nobody knows the will exists.
Make sure your loved ones know you’ve made a will and where to look for it when the time comes. They don’t need to know the contents of the document, just where it is stored.
Once the will has been finalised and signed, keep it in a secure yet accessible place – like a locked drawer, safe, or safe deposit box at a bank. If you hire a solicitor, they’ll most likely keep an official copy on file in their offices.
6. Not having the original
Giving a photocopy of your will to your executor or next of kin can be handy, so they can make immediate arrangements on your passing, such as arranging body donation or planning a funeral.
However, an executor needs the original will document to legally administer your estate.
Without the original, your executor may have trouble getting a grant of probate to manage your affairs. Ensure they know where to find the original document when they need it.
7. Underestimating a will may be contested
When someone has died and left their estate, it can be surprising to learn who believes they are entitled to an inheritance, or a larger stake than they were given.
While a will is a legally binding document, it can be challenged in court, and contesting a will is becoming more common.
The law regarding who can contest a will differs between states and territories. The success of a challenge depends on individual circumstances, including the relationship between the deceased and the challenger, and the size of the estate.
If you wish to disinherit a close family member or spouse, or leave them only a smaller portion of the estate, it can be helpful to include a statement or clause in your will justifying your decision.
Clarifying your intentions can help minimise the chance of successful claims against your estate.
If you have specific reasons for not including a dependent or spouse in your will, or if you are a person who feels entitled to receive a share in a deceased person’s estate but believe you’ve been unfairly left out of a will, you should seek legal advice.
Bottom line
Wills and estate plans shouldn’t be ‘set and forget’ documents. They should be reviewed every few years or whenever there is a major change to your personal or financial circumstances.
Regular reviews ensure your assets are correct and the people you want included in your will – or those you want removed – have been updated.
Including a statement to justify your decisions can help minimise the risk of your will being contested if someone believes they’ve been unfairly left out or overlooked.
Yajaira Appeldorff is a wills and estate lawyer at Bare.
Go deeper:
How to find an executor when family and friends are ruled out
Financial disclaimer
The information contained on this web page is of general nature only and has been prepared without taking into consideration your objectives, needs and financial situation. You should check with a financial professional before making any decisions. Any opinions expressed within an article are those of the author and do not specifically reflect the views of Compare Club Australia Pty Ltd.
