Updated 23 October 2026
Wills - Potential Problem #46: Ignoring State Inheritance Laws
A will should explain who receives your estate, what they receive and what happens if the original plan cannot operate. In NSW, vague instructions can leave an executor uncertain about the beneficiaries, the assets being gifted or the intended shares. A clear conversation with your solicitor is the starting point for turning personal wishes into workable provisions.
Christine’s perspective: When you tell me you want to leave ‘my property to my children’, we need to unpack that instruction. Do you mean the family home, everything you own, or your share of particular assets? Which children should benefit, and in what proportions? The answers help us draft a will that reflects your intention.
1. Identify the people you intend to benefit
‘My children’ is not automatically defective wording. A properly drafted class gift can accommodate a changing family. The important question is whether the class includes the people you intend. Discuss children from earlier relationships, adopted children, stepchildren and any children born later. Do not assume that a family expression and its legal meaning necessarily coincide.
Give your solicitor full names, relationships and identifying details. Explain different surnames, nicknames and Greek or English versions of a name. These details help distinguish relatives with similar names. Naming only existing children individually may also require review if another child is born.
Explain whether grandchildren should receive anything directly or only if their parent cannot inherit. Decide how that parent’s share should be divided. Naming someone as executor gives them an administrative role; it does not, by itself, make them a beneficiary.
2. Classify assets and establish who owns them
Prepare an inventory by asset category. NSW Government guidance on wills recommends identifying assets, liabilities and ownership arrangements. You do not need to list every household object in the will, but your solicitor needs enough information to understand the estate and draft any particular gifts accurately.
Land and buildings: provide addresses, title details, your ownership share and mortgage information. A street address may cover more than one title, or several addresses may sit on one title. Joint tenancy generally involves survivorship; a tenant-in-common share generally forms part of the estate. Other beneficial interests can also require investigation.
Personal possessions: distinguish particular jewellery, watches, artwork, vehicles and collections from general household contents. For a specific gift, use an identifying description rather than ‘my valuables’. Photographs, serial numbers and an inventory can support identification without putting an exhaustive catalogue in the will.
Financial and business interests: identify bank accounts, investments, debts owed to you and liabilities you owe. Company shares are different from assets owned by the company. Trust assets need separate analysis. Include digital assets and website interests in the inventory, with secure access arrangements kept separately from the will.
Superannuation does not automatically pass under your will. Review fund rules and death benefit nominations alongside the estate plan. ASIC’s Moneysmart guidance explains the distinction between nominating an eligible person and directing benefits to your legal personal representative for estate administration.
3. A real Marrickville case about property descriptions
In Estate of Aspasia Kandros [2019] NSWSC 757, the will gifted different Marrickville premises to different beneficiaries, although the land had been consolidated onto one title. It also misdescribed a Caringbah unit by identifying it as No 5 rather than Unit 5 at its correct address.
The Supreme Court considered the will’s wording and admissible evidence to identify the intended gifts. The judge distinguished interpreting the will from rectifying it, and was not satisfied that the statutory grounds for rectification had been established. Further consideration of declarations and orders, including partition arrangements, remained necessary.
This was a reported court matter, not a CM Lawyers client example. Its practical lesson is local and straightforward: identifying a building by the name or address the family uses may not explain the legal interest being given. Check the title and the proposed division before signing.
4. Choose the type of gift and explain the arithmetic
A specific gift, a fixed monetary gift and a percentage of the residue can produce very different results. A specific gift identifies an asset, such as your interest in a particular apartment. A monetary gift gives a stated sum, subject to the estate’s ability to pay it and applicable administration rules. A residuary share gives a proportion of what remains after relevant debts, expenses and earlier gifts have been dealt with.
Explain whether a particular gift is additional to the recipient’s residuary share or should count towards an intended overall entitlement. Giving one child a house and another child an investment account does not guarantee equal inheritances: values and liabilities change. If equality is the objective, your solicitor needs instructions about valuation, timing and how any adjustment should work.
Also explain what should happen if a specifically gifted asset is sold, replaced or no longer owned at death. The gift may fail, subject to the wording and applicable legal exceptions. A replacement property, sale proceeds or cash alternative does not necessarily pass to the same person automatically. Deliberate drafting and later reviews can address that risk.
For example, a parent might intend a daughter to receive a watch and then share the remaining estate equally with her brother. That differs from treating the watch’s value as part of her total half-share. This is a drafting illustration, not a reported dispute; the distinction should be settled while the parent can explain it.
5. Cover the residue and the backup plan
A residuary clause can cover assets not individually mentioned, including assets acquired later. Broad wording such as ‘all my property’ can therefore be useful when placed within a properly drafted distribution. The concern is uncertainty about its scope or recipients, not the mere use of a general expression.
Include substitute beneficiaries and an ultimate fallback if the intended recipients cannot inherit. Discuss survival requirements, beneficiaries under 18 and whether a deceased beneficiary’s descendants should take their place. Statutory rules can save some gifts to descendants in particular circumstances, but they are not a universal substitute for clear instructions. Also nominate substitute executors. If assets are not effectively disposed of, intestacy rules may determine their destination.
6. Record your intention and check the final document
Your solicitor should obtain your own instructions and check that you understand the proposed distribution. Arrange appropriate language assistance where needed. Review names, asset descriptions, percentages and fallback provisions before signing, and explain any uncertainty rather than assuming the family will resolve it later.
NSW law allows courts to consider outside evidence when interpreting wills in defined circumstances. Rectification under section 27 of the Succession Act 2006 is a separate remedy for specified errors. Neither process gives a court unrestricted power to rewrite a will into whatever relatives consider fair.
Keep your asset inventory current, but remember that updating a list or attaching a note does not automatically amend the will. Changes to beneficiaries or operative gifts should be properly documented and executed. Legal Aid NSW’s will guidance explains why legal requirements and regular reviews matter.
7. Check interstate connections and changing circumstances
Australian succession law is not identical across every state and territory. Moving interstate does not automatically invalidate an existing will, but a move, property purchase or overseas inheritance can warrant advice about applicable law and administration. Tell your solicitor where you live and where assets are located. Review the plan after family, ownership or financial changes.
CM Lawyers can help turn your instructions into a coordinated will and estate plan. Bring your existing documents, family details and asset inventory. Contact our Marrickville team to discuss who should receive what, and how to make that intention clear.
This article provides general information about NSW law. Advice should address your circumstances and documents.
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