Updated 22 October 2026
Wills - Potential Problem #27: Ignoring Contingency Planning
Contingency planning means deciding what should happen if the people named in your will cannot inherit or administer your estate as expected. A beneficiary may die before you, an executor may become unwell, or a gift may depend on a condition that is never met. Clear alternatives help your family understand what happens next.
In New South Wales, the will’s wording and statutory rules determine the outcome. A missing substitute does not automatically invalidate the whole will, and the court does not simply divide the estate according to what relatives consider fair. The aim is to record your choices while you can still explain them.
Separate the people who inherit from those who administer
A beneficiary receives a gift. An executor collects estate assets, pays liabilities and distributes what remains according to the will and applicable law. One person can fill both roles, but an appointment to one role does not automatically appoint them to the other.
You therefore need two sets of alternatives: substitute beneficiaries and substitute executors. Naming grandchildren as replacement beneficiaries does not, by itself, authorise them to administer the estate. Equally, appointing a substitute executor does not give that person an inheritance.
Christine on a family whose will lacked clear alternatives
I dealt with a matter where a mother had left a gift to her child. That child had children of their own, but the grandchildren were not expressly named as contingent beneficiaries. The administration ultimately required an application for letters of administration.
It is the sort of situation that shows why we need to look beyond the first name written in a will. What happens if that child cannot take the gift? Who is supposed to receive it instead? And who will have authority to deal with the estate? Those questions need separate answers.
There is an important distinction here. Omitting grandchildren from a substitution clause does not necessarily exclude them, because NSW legislation may preserve the gift for descendants. Nor does that omission alone explain why letters of administration are needed. The entitlement to inherit and the authority to administer must each be checked against the actual documents and circumstances.
What happens if a beneficiary dies first
Under section 35 of the Succession Act, a beneficiary generally must survive the will-maker by 30 days, subject to the Act and a contrary intention in the will. A beneficiary who dies shortly afterwards can therefore create a problem as well as one who dies beforehand.
Section 41 contains an important protection, often called the anti-lapse rule. Where its requirements are met, descendants of a deceased beneficiary who was the will-maker’s child or other descendant can take that beneficiary’s share. A contrary intention in the will can displace that outcome. Do not assume that every gift automatically passes to grandchildren, or that grandchildren always miss out unless named.
If a gift fails, its destination depends on the will and applicable rules. It may fall into the residue, pass to another residuary beneficiary or leave property to be distributed under intestacy. Ask your solicitor to explain the result for each gift, including the final fallback if none of your preferred beneficiaries can inherit.
A real case where a granddaughter inherited
In Straughen-Nicholson v Straughen (2019), Roy Straughen’s will left his estate equally to his three named children as tenants in common. One daughter, Karen, died before him. Karen’s only child was Emma.
The Supreme Court of NSW held that section 41 applied. The gifts were unconditional, the relevant statutory requirements were met and no contrary intention prevented substitution. Emma took her mother’s one-third share, including the relevant interest in the property and residue.
The case demonstrates that statutory protection can operate without an express gift to a grandchild. It also shows why the exact words matter. Clear substitution clauses let you specify the intended family branch, any age requirement and the alternative if that branch has no surviving descendants.
Make substitute executor appointments work in practice
Choose someone suitable to act if your first executor dies, declines the role or becomes unable to carry it out. Discuss willingness and practical availability before naming them. Where several executors are appointed, the drafting should address what happens if only one can act.
The Supreme Court’s guidance identifies a common trap: a substitute appointment expressed to operate only if the original executor dies first may not activate when that executor survives but is unwilling or unable to apply. Naming a replacement is only useful if the triggering conditions cover the intended circumstances.
Where a will exists but no executor is available to apply for probate, an appropriate person may need letters of administration with the will annexed. This authorises an administrator to deal with the estate. It differs from administration where the deceased left no valid will. Missing beneficiary provisions do not, on their own, determine which grant is required.
Plan for age conditions and changes in assets
If a beneficiary must reach a particular age, decide who holds the gift meanwhile, what support may be provided and what happens if the beneficiary dies before reaching that age. Distinguish a requirement to survive you from a requirement to attain a specified age. They can produce different outcomes.
Review specific gifts when an asset is sold or replaced. A gift of a particular property or item may not work as expected if you no longer own it at death. A well-drafted residue clause and final fallback help deal with assets or circumstances that were not individually anticipated. The NSW Government’s wills guidance explains the importance of dealing with the whole estate.
Five steps to strengthen your will
1. Check every beneficiary. Ask what happens if they die before you, shortly afterwards or before satisfying an age condition.
2. Identify the intended replacement. Decide whether the gift should pass down that beneficiary’s family branch, to surviving siblings or to someone else.
3. Check executor alternatives. Include suitable substitutes and make sure the appointment covers unwillingness and inability to act as well as death.
4. Test the final fallback. Consider what happens if your spouse, children and their descendants cannot inherit. Record a deliberate alternative instead of leaving an unintended gap.
5. Review and execute changes properly. Arrange a review after a death, birth, relationship change or major transaction. Family conversations and handwritten notes should not be treated as substitutes for a properly prepared and executed amendment.
The Supreme Court’s 2025 provisional statistics, published as at 22 January 2026, record 507 contentious probate filings in 2025. This is a court workload figure, not a count of disputes caused by missing contingency clauses or a measure of your estate’s likelihood of litigation. Clear drafting cannot prevent every dispute, but it can reduce uncertainty about your instructions.
How much does a will with contingency planning cost
A straightforward single will starts from $440 including GST. We confirm your fee in writing before we start. Discuss substitute beneficiaries, substitute executors and the final fallback when giving instructions. Testamentary trusts or more complex arrangements may require a separate quote.
CM Lawyers assists with wills and estate planning and estate administration. Bring your existing will and a family outline so we can check the alternatives against your circumstances.
About the author
Christine Manolakos is a Solicitor at CM Lawyers. She brings over 30 years of experience across wills and estates, conveyancing, family law and criminal law.
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