Updated 23 October 2026
Wills - Potential Problem #9: DIY Wills Without Legal Advice
A post office will kit or online will pack can produce a valid will in New South Wales. The danger is assuming that completing the boxes means the document achieves your intentions. A will can be properly signed yet leave out a child, give away an asset you do not personally own, or fail to deal with the remainder of your estate.
Professional advice helps connect the words on the page with your family circumstances and actual assets. Saving $100 on preparation can be poor value if unclear wording leaves millions of dollars in estate assets subject to competing claims. The consequences can include legal proceedings, delayed distributions and gifts passing to unintended recipients.
Why a completed will kit can still go wrong
Post office wills and online packs vary. Some online services include individual legal advice; others simply generate a document from your answers. Check what the service actually includes. A template cannot resolve a misunderstood question, establish property ownership or assess a complicated family arrangement unless those matters are properly investigated.
Common problems include confusing executors with beneficiaries, overlooking the residue, failing to name substitute beneficiaries and using inconsistent percentages. A document may also contain conditions whose practical effect the will-maker has not understood. These errors can remain unnoticed until the person who could explain their intentions has died.
Christine on confusing an executor with a beneficiary
I dealt with a client who had completed a post office will and thought naming a child as executor also meant that child would inherit. When we reviewed the document, one child had been left out of the beneficiary provisions because of that misunderstanding.
Fortunately, we picked it up while the client was alive and corrected the will before their death. It was a simple distinction to explain in a conversation, but it would have been much harder for the family to address afterwards. Naming someone to carry out your wishes does not, by itself, leave them anything.
An executor administers the estate, including dealing with debts and distributing assets. A beneficiary receives a gift or share under the will. The same person can hold both roles, but both intentions need to be expressed. Choosing a substitute executor also helps if your first choice cannot act.
First establish what actually belongs to your estate
An estate plan should identify how each asset is owned. Property in your sole name generally forms part of your estate. If you own a property as a tenant in common, your share can pass under your will. Property held as joint tenants generally passes to the surviving joint owner by survivorship, regardless of a contrary gift in your will.
Company and trust structures require separate attention. Owning company shares does not mean you personally own the company's land or bank account. Your shares may pass under your will; company assets remain company assets. Trust property is generally governed by the trust arrangements, so succession to control needs its own review.
Superannuation also needs separate planning. The fund's rules, superannuation law and any valid death benefit nomination determine how benefits are paid. A valid nomination to your legal personal representative can direct benefits into your estate, where your will can govern distribution. Simply listing super in a will does not bind the fund trustee.
A percentage gift differs from a gift of a property
Leaving a particular house to one child and savings to another does not necessarily produce equal inheritances. Property values, mortgages and account balances change. In a hypothetical estate with a $2 million house and $200,000 in savings, those gifts have very different values even before debts, expenses and tax are considered.
A gift of 50% of the residue works differently. The residue is what remains after the estate's obligations and earlier gifts have been dealt with. Percentages must clearly identify what they apply to and allocate the whole intended fund. They do not automatically entitle each beneficiary to half of every individual asset.
A specific property gift may fail if the property has been sold before death, depending on the wording and applicable exceptions. This is known as ademption. Discuss what should happen if you move house, replace an investment or need to sell an asset to fund care. Review the will after significant changes.
A real NSW will kit case involving property worth over a million dollars
In Estate of the late John Currie Docherty Hamilton (2025), the deceased used a will kit. His wording referred to an Allambie Heights property and using sale proceeds to buy another home. He later sold that property and bought in Terrigal.
The estate assets recorded in the judgment totalled approximately $2.45 million, including the Terrigal property valued at $1.05 million. Proceedings were needed to determine whether the wording gave the replacement property to his daughter or whether the gift had failed.
The Supreme Court interpreted the clause as entitling the daughter to the Terrigal property. The will also lacked a residue clause, leaving the remaining estate, apart from another specific gift, to pass under intestacy rules. The Court ordered the costs of that determination to be paid from the residue. Other claims, including family provision claims, remained unresolved at that judgment.
Signing and witnessing still matter
Under section 6 of the Succession Act 2006 (NSW), a will ordinarily needs to be in writing and signed by the will-maker, or by someone in their presence and at their direction. The signature must be made or acknowledged before at least two witnesses present together, and at least two must sign in the will-maker's presence.
Use independent witnesses who are not beneficiaries. A beneficiary who witnesses may lose their gift unless an exception applies. Downloading a document or completing an online questionnaire does not, by itself, complete execution. Ask for specific advice if remote witnessing or assistance with signing is needed.
When letters of administration may be needed
If a DIY document cannot be admitted as a will, and no earlier valid will operates, the estate may be distributed under intestacy rules. Where a grant is required, an eligible person may need to apply for letters of administration. The statutory distribution may differ from what the deceased wanted.
If there is a valid will but no executor available, the appropriate application may instead be for letters of administration with the will annexed. This does not itself mean the will is invalid or the estate is disputed. Similarly, a valid will that omits some assets from its distribution can create a partial intestacy without necessarily requiring that form of grant.
The Court can sometimes admit an informal document under section 8 or rectify a will under section 27. These powers depend on statutory requirements and evidence. Families should not assume a judge can simply rewrite a defective document to achieve the fairest result.
The Supreme Court's provisional 2025 statistics, compiled as at 22 January 2026, record 507 contentious probate filings. The figures do not identify how many involved DIY wills. They demonstrate the volume of contested probate work, without establishing a failure rate for any particular will kit or online service.
Five checks before relying on a DIY will
1. Check each role. Identify your executors, substitutes and beneficiaries separately, and confirm who receives each gift.
2. Check ownership. Bring title details, company and trust documents, and superannuation nominations to your appointment.
3. Check distribution. Clarify specific gifts, percentages, the residue and what happens if a beneficiary dies before you.
4. Check validity. Review capacity, independent instructions, signing and witnessing. Do not make handwritten changes without advice.
5. Check the plan regularly. Review after major family or asset changes and tell your executor where the signed original is stored.
CM Lawyers can review an existing will kit or prepare a will suited to your circumstances. Explore our wills and estates resources or contact our Marrickville team.
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