Updated 4 November 2026
CM Law's Ultimate 50 List: Making a Will #50 - What are common mistakes to avoid when making a will?
A useful will does more than name the people you want to benefit. It must express workable instructions, deal with the assets you can actually give away and meet legal requirements. Small shortcuts can leave your executor with questions that only a court can resolve. Careful preparation now gives your family clearer directions later.
Why is putting off your will a mistake?
Without an effective will, the intestacy rules determine who receives your estate. Those rules may differ from your wishes, particularly in blended families. An unfinished draft also leaves uncertainty. Make a workable will while you can give clear instructions, then review it as your life changes.
A will kit is not automatically invalid, but it cannot identify every problem in your circumstances. My practical advice is to bring your family details, existing documents and asset list to a planning appointment before choosing wording or signing anything.
What signing mistakes can undermine a will?
A standard NSW will must be written and properly signed. Your signature must be made or acknowledged before at least two witnesses present together. At least two witnesses must then sign in your presence. Treat the signing appointment as a legal step, rather than an administrative formality.
The NSW execution requirements allow particular alternatives, including another person signing at your direction and in your presence. If disability, distance or illness affects execution, arrange advice beforehand. Do not improvise separate signing sessions or assume an electronic signature solves the problem.
Should a beneficiary witness your signature?
Use suitable witnesses who receive no gift under the will. In NSW, an interested witness can lose their gift unless a statutory exception applies. Their involvement does not automatically invalidate the entire will, but it can create an avoidable problem for the beneficiary and executor after your death.
Section 10 of the Succession Act 2006 contains exceptions, including a court being satisfied that the gift was knowingly approved and freely made. Plan independent witnessing at the outset instead of relying on later evidence to preserve a gift.
Why should capacity and pressure be addressed early?
You must have testamentary capacity and make your own decisions freely. The assessment concerns your understanding of the will, your property and the people whose claims you should consider. A diagnosis or advanced age alone does not establish incapacity, and family disagreement alone does not establish undue influence.
Tell your solicitor about health concerns, communication needs or pressure from others. Independent instructions, an appropriate interpreter and contemporaneous evidence can help. The NSW Capacity Toolkit explains why capacity depends on the particular decision and the time it is made.
How can vague gifts create disputes?
Identify beneficiaries and gifts clearly, and explain what should happen if a beneficiary dies before you or a particular asset has been sold. Include a properly drafted gift of the remainder of your estate. Without it, some assets may pass under intestacy rules despite your having a will.
Check names, ownership, substitute beneficiaries and whether percentages add up. A gift of a home needs thought about its mortgage and any intended right to live there. Avoid handwritten explanations that conflict with the operative clauses or leave essential choices unresolved.
What mistakes should you avoid when choosing an executor?
Choose an executor who is willing, capable and able to manage records, debts and communication with beneficiaries. Discuss the role and nominate a suitable replacement. A beneficiary can be an executor; the important questions are competence, potential conflict and whether your chosen arrangements will work in practice.
Appointing several people does not necessarily prevent disagreement. Consider their relationships, location and availability. If using a professional executor, understand the proposed charging arrangements. The NSW preparation checklist helps organise the names and information needed before drafting.
Can you leave every family asset in your will?
Your will generally deals with assets forming your estate, not everything your family uses or controls. Jointly owned property, companies, trusts and insurance need separate checking. Property held as joint tenants usually passes to the surviving joint owner, while your share held as a tenant in common ordinarily enters your estate.
A company owns its assets separately from its shareholders: you may leave your shares, not the company’s house as though it were yours. Obtain title and ownership information. Overseas assets may also require coordinated advice in the relevant country.
Why must superannuation nominations be checked separately?
Superannuation does not automatically pass under your will. Check your fund’s rules and beneficiary nomination, including whether it is binding, valid and current. A nomination of your legal personal representative may direct benefits into your estate, but the right arrangement depends on your circumstances and the fund’s requirements.
Some binding nominations expire and others do not. Review them after relationship changes and check beneficiary eligibility rather than copying names from your will. ASIC’s super death benefits guide explains the main nomination types and who can receive benefits.
How should a will provide for children and vulnerable beneficiaries?
Consider who should manage an inheritance, when the beneficiary should receive control and how necessary expenses can be paid meanwhile. For minor children, discuss a suitable guardian as well. Naming a guardian records your wishes; it does not override a court’s decision about the child’s best interests.
A trust may need tailored powers for education, accommodation or disability support. Do not assume the person caring for someone should automatically control their money. Legal Aid NSW explains guardianship limitations, including why an adult child needs a different planning approach.
What happens to your will after marriage or separation?
Marriage generally revokes an existing will, subject to exceptions, including wills made in contemplation of marriage. Divorce usually revokes gifts and appointments benefiting a former spouse, with exceptions; it does not necessarily cancel the whole will. Separation alone does not revoke your will, so arrange a prompt review.
Also review after births, deaths, substantial asset changes and changes in an executor’s availability. Do not assume a property settlement updates your estate plan. Tell your solicitor about existing wills and relationships so replacement documents operate as intended.
Can leaving someone out prevent a claim?
Leaving someone out does not necessarily prevent an eligible person seeking family provision. The court considers whether adequate provision has been made for their proper maintenance, education or advancement in life. Eligibility does not guarantee an award, and a token gift does not automatically defeat a claim.
The Supreme Court distinguishes validity challenges from family provision claims. Family provision applications ordinarily must be filed within 12 months of death, unless the court permits late filing or the parties consent. Discuss family circumstances and reasons for your decisions; professional drafting cannot guarantee an unchallengeable will.
What tax assumptions should you avoid?
Australia has no inheritance or estate tax, but that does not make every inheritance tax free in every respect. Income earned by an estate, later asset disposals and some superannuation death benefits can have tax consequences. Plan using the actual assets, beneficiaries and proposed transfers rather than general assumptions.
Different gifts with similar headline values may leave beneficiaries in different positions after liabilities and tax. Obtain tax advice for complex assets, overseas beneficiaries or trusts. The ATO’s beneficiary guidance explains the main distinctions without promising a universal exemption.
How should you handle digital assets and document storage?
Make sure your executor can identify your assets and find the original will. Keep a separate, secure inventory of accounts, digital holdings and relevant contacts. Do not put passwords or private keys in the will itself, and do not assume a beneficiary automatically receives unrestricted access to every online account.
Check platform terms and lawful access arrangements, including available legacy contacts. Tell your executor where documents are stored and review the inventory regularly. A separate digital executor is not a compulsory appointment; suitable executor powers and practical access planning matter.
What does a real NSW video will case teach?
An informal recording can require court intervention even where it ultimately succeeds. In Re Estate of Wai Fun Chan [2015] NSWSC 1107, the Supreme Court admitted a DVD recording as a codicil to a formal will. The decision illustrates why clear intentions do not remove execution and witness complications.
Ms Chan signed a solicitor-prepared will on 6 March 2012. Two days later, she recorded additional wishes in Cantonese, assisted by a daughter who benefited and that daughter’s spouse. The Court found she intended the recording to alter her will and had freely approved the dispositions.
The Court admitted both documents, made the declaration required for the interested-witness issue and ordered the applicants’ probate costs paid from the estate on an indemnity basis, without specifying an amount. It also warned of the expense and uncertainty informal recordings can create. The outcome does not establish that every video message is a valid will.
What should you do before signing or changing your will?
Arrange a review of your family circumstances, ownership records, proposed gifts and existing documents. Ask how the will works alongside superannuation and lifetime decision-making arrangements. If changing an existing will, use a properly prepared replacement or codicil rather than crossing out words or attaching an unsigned note.
A will operates after death; an enduring power of attorney and enduring guardianship serve different purposes during life. CM Lawyers’ wills and estates service can help coordinate these documents. Contact Christine Manolakos to discuss your instructions and organise a careful signing process. Call 02 9557 9000 or email lawyers@cmlaw.com.au.
General information for NSW readers, current at 4 November 2026. Obtain advice about your own estate plan.
Key resources
