Updated 28 October 2026
CM Law's Ultimate 50 List: Making a Will #45 - How can I avoid family disputes over my will?
How can I avoid family disputes over my will?
You can reduce the risk of a will dispute by giving clear independent instructions, signing correctly, choosing suitable executors and reviewing your estate plan when circumstances change. Where gifts are unequal or someone is excluded, a carefully prepared statement of reasons may help explain your decisions, but cannot prevent every claim.
A solicitor should consider your family relationships, assets, dependants and previous gifts together. Clear drafting addresses uncertainty; evidence of capacity and independent instructions addresses different risks. No document can guarantee that an eligible person will not seek family provision.
Why do disputes arise even when there is a signed will?
A signed will can still attract disputes about its validity, the meaning of its terms or whether adequate provision has been made for an eligible person. These are different legal questions. A family provision claim does not necessarily allege that the will is invalid or that anyone behaved improperly.
Validity issues can include lack of testamentary capacity, undue influence and defective signing. Interpretation disputes may concern unclear gifts or beneficiaries. Family provision proceedings instead examine whether the applicant should receive provision under the Succession Act 2006.
The Supreme Court’s contested proceedings guidance explains these distinctions. Understanding the actual risk helps your lawyer choose appropriate drafting and evidence, rather than relying on a general instruction that nobody should challenge your wishes.
What is a section 100 statement under the Succession Act?
A section 100 statement is the common name for a statement explaining a will-maker’s intentions and reasons, often where someone receives little or nothing. Section 100 of the Succession Act 2006 concerns evidence of deceased persons’ statements in family provision proceedings. It does not create a compulsory form or make the explanation binding.
Section 60(2)(j) permits consideration of evidence about testamentary intentions. Section 100 deals with admissibility and weight. Together, they can allow your explanation to be considered after death, subject to the applicable evidentiary rules.
A lawyer may recommend a separate signed and dated statement, sometimes prepared as a statutory declaration. Section 100 does not require every statement to be sworn. The label itself gives no special protection, and the document should explain your will without accidentally attempting to change its gifts.
What should a statement of reasons contain?
A useful statement records accurate reasons in your own words, identifies relevant relationships and explains any unequal provision. It should distinguish facts you know from assumptions, acknowledge relevant financial assistance and describe competing responsibilities. Your solicitor should check it against the will and supporting records, and review it when circumstances change.
- Identify the person concerned and describe the relevant relationship history with dates where possible.
- Record substantial gifts, loans or support, distinguishing genuine loans from gifts and retaining available records.
- Explain known needs and obligations to other beneficiaries without presenting guesses about someone’s finances as established facts.
- Describe relevant events calmly. Avoid insults, exaggeration and unsupported allegations about motives or conduct.
- Update the statement after reconciliation, further assistance or a material change in your intentions.
In Plummer v Montgomery [2023] NSWSC 175, the Court discussed the need to assess statements critically. Your explanation may be tested against other evidence. Do not assume a separate statement will remain confidential if litigation follows.
How do the will and supporting documents differ?
A will, a statement of reasons and supporting records perform different functions. The will directs the estate’s distribution, while other documents may explain choices or provide evidence about how instructions were given. They should work consistently together. A letter or declaration is not a substitute for a properly prepared and executed will.
| Document |
Main purpose |
Important limit |
| Will |
Directs distribution of estate assets and appoints executors. |
Can still face validity, interpretation or family provision proceedings. |
| Section 100 statement |
Explains reasons, including unequal gifts or exclusion. |
Evidence is assessed for reliability; the court is not bound by it. |
| Letter of wishes |
Provides guidance to executors or trustees; may overlap with a statement of reasons. |
Generally not binding and should not contradict the will or purport to change gifts. |
| Solicitor and medical records |
May support evidence about independent instructions and capacity. |
Do not guarantee validity or replace correct execution and legal assessment. |
How can I reduce concerns about capacity, pressure and witnessing?
Give instructions directly to your solicitor, preferably in a private meeting, and allow time to explain your assets, family and proposed gifts. Where capacity is uncertain, appropriate medical input and detailed contemporaneous records may help. The will must also be signed and witnessed correctly; an online template does not complete those steps for you.
The Law Society’s guidance supports independent instructions and records of questions and answers. A medical diagnosis alone does not determine testamentary capacity, and a doctor’s letter cannot guarantee that a challenge will fail.
For an ordinary in-person signing, sign or acknowledge your signature with two witnesses present together. Both then sign in your presence. Use suitable independent adults who are not beneficiaries. Under section 10, a beneficiary who witnesses can lose their gift, subject to exceptions; this does not automatically invalidate the entire will. Obtain advice about the signing requirements before execution.
Can an exclusion statement or no-contest clause stop a claim?
An exclusion statement or no-contest clause does not remove an eligible person’s statutory right to seek family provision in NSW. Leaving a nominal gift also provides no automatic protection. The court considers the legislation, the applicant’s circumstances and competing claims, rather than treating the will-maker’s explanation as a decisive instruction.
Eligibility is only the starting point. The court considers whether adequate provision has been made for proper maintenance, education or advancement in life. Relevant matters can include relationships, financial needs, disability, contributions and earlier assistance.
A family provision application ordinarily must be filed within 12 months of death; an extension requires sufficient cause. Do not assume estrangement, a family meeting or a private promise not to claim resolves the legal risk. Obtain specific advice before relying on any proposed release of rights.
What does a real NSW case show about inaccurate statements?
In Bohen v Mitchelmore [2024] NSWSC 171, the Supreme Court examined statements explaining a mother’s limited provision for her adult daughters. Important allegations in her 2016 statement were found to be largely false. The Court ordered additional provision after assessing the evidence, the daughters’ needs and the competing claims.
The will gave the daughters household belongings of sentimental value and left the residue to grandchildren. The statements accompanying the wills sought to explain why the daughters did not need substantial provision and described aspects of their relationships with their mother.
The Court ordered each daughter to receive one-third of the net residuary estate, in addition to her existing gift. The orders also allowed a later variation application following an outstanding superannuation trustee decision.
The lesson is to record accurate, supportable reasons. The decision does not establish that children must receive equal shares or that every exclusion will fail.
How should I choose executors and keep the plan up to date?
Choose executors who can administer the estate competently, communicate appropriately and manage competing interests. Review your will and supporting statement after significant family or financial changes, and keep originals safely. Explain where the documents are held so your executor can locate them when needed, without relying on conflicting copies or family recollections.
Two executors can provide oversight, but serious disagreement can also cause delay. Discuss their ability to cooperate, replacement appointments, conflicts and any professional fees before deciding.
Family discussions may reduce surprises where safe and appropriate, but should not become pressure to adopt someone else’s wishes. Check superannuation nominations, jointly owned property and business or trust interests separately, because the will may not control those assets.
CM Lawyers’ wills and estates team can review the overall plan and an appropriate section 100 statement. Arrange a consultation before signing an exclusion or relying on a generic template.
General information about NSW wills and estates. Always have a lawyer check your will, statement of reasons and overall estate plan for your circumstances.
Key resources
