20 February 2024

Alternative dispute resolution – A faster and cheaper way to settle business disputes

Alternative dispute resolution - A faster and cheaper way to settle business disputes

Writing a Will is essential, but it’s also deeply personal, and can be tricky to navigate at times. Fuelled by your desire to protect your loved ones and safeguard your legacy, often little mistakes that can have big consequences can slip through. These common mistakes in Wills can derail even the most well-intentioned estate plan, leaving loved ones confused, distressed and leads to heartache and often costly legal battles. 

Our goal is to ensure your Will stands as a testament to your thoughtfulness and care, leaving no room for ambiguity or dispute. Here are the 15 most common mistakes in Wills that we see, and how to avoid them. 

1. Forgetting to update your Will

At the top of our list of common mistakes in Wills? Letting them gather dust. 

A Will isn’t something you write once and forget about. Life doesn’t stand still, and neither should your estate planning. Big life moments – like marrying, welcoming a new family member, or navigating a divorce – aren’t just milestones; they’re signposts that it’s time to revisit your Will. 

Our Wills and estates lawyers suggest a quick once-over of your Will each year, with a more thorough review every 3-5 years to make sure your estate plan reflects your current circumstances. 

2. Failing to consider the needs of your beneficiaries

This one is a common pitfall; drafting Wills that divide up everything in equal slices, as if one size fits all. But life is not like that. Each beneficiary has their own story, challenges, and dreams. A blanket approach just doesn’t cut it. 

For example, a young adult still finding their way might benefit from guidance and gradual support, while an independent adult child might not need the same level of financial backing. If you have a child with special needs or learning difficulties, their path might require a more tailored approach, or perhaps even a dedicated Trust to ensure their wellbeing. 

How do you fix this common mistake in your Will? 
Start by individually assessing each of your beneficiaries. Look at their financial stability, health conditions, age, and future potential needs. You can also look at creating Trusts or staggered distributions for beneficiaries at various life stages, ensuring they don’t get their inheritance in one lump sum. 

3. Ignoring your legacy now

A common Will mistake we see is people assuming that because they are young, they don’t need a Will yet. It’s often thought that estate planning is a last-minute exercise done right before a person dies, but this approach can be dangerous. 

Consider your legacy as a project that requires gradual development rather than a once-off, late-stage scramble. Effective estate planning might include the phased transfer of assets and businesses, ensuring your intentions are clearly reflected and acted upon during your lifetime. 

Incorporating life insurance into your estate plan is another strategy. It can bolster the value of your estate, provide a financial cushion to cover debts such as mortgages, and ensure that your beneficiaries are cared for per your wishes. 

Starting with a clear vision of your end goal means you can craft a plan that not only aligns with your personal values, but also benefits your loved ones and future generations the way you want it to. 

4. Thinking marriage makes a Will unnecessary

The belief that marriage renders a Will redundant is a common but misguided notion. Many assume that their spouse will automatically inherit everything, but this oversimplification overlooks the nuanced realities of modern family structures and relationships. 

Without a Will, in Western Australia your estate is carved up according to a formula in a piece of legislation called the Administration Act. Who gets what is a combination of how much you have and who you leave behind- and it can produce some very unexpected results.

For example, a married spouse may not automatically inherit everything; dependent children, stepchildren, de facto spouses, parents and even more distant relatives, can get a look in if you don’t have a Will. Much depends on who you leave behind and what sort of assets you have.

De facto partners are often overlooked, but may have claims to specific assets like superannuation and insurance benefits which makes having a Will that much more important. It can help to ensure that your wishes are carried out and your loved ones are provided for.

5. Making promises you can’t keep

Making verbal promises about asset distribution, particularly around family businesses or rural estates, without formally including them in your estate plan, can lead to major issues. It’s not uncommon for promises made seemingly in passing or during informal discussions to be latched onto by the person on the other side of the promise and if it’s unfulfilled can spark significant disputes among family members or other intended beneficiaries. 

These promises can be challenged, and may even be enforceable in Court, going against wishes expressed in the Will. That’s why it’s crucial not to make promises you can’t uphold – and to build a solid estate planning strategy for the promises you can. This can go a long way to avoid misunderstandings or costly conflicts later on.

6. Leaving it too late

Putting off writing your Will, especially as you get older, can lead to unnecessary complications, such as disputes over mental capacity and can even lead to your Will being declared invalid by Court. 

Writing a Will is an essential part of your legacy and can greatly benefit those closest to you – and writing it can be easy, with the right advice. To help you get started, reach out to our team of estate planning lawyers who are experienced in drawing up secure and legally binding estate planning documents.

7. Leaving beneficiaries out of the Will for no good reason

Sadly, it has become very common for people to want to leave a beneficiary out of their Will who is expecting to receive. For example, excluding a child with a history of addiction or financial troubles, for fears they will waste or misuse their inheritance. While concerns about high-risk behaviour are real and valid, excluding a wayward child outright will not prevent a legal battle over the Will. 

If you find yourself asking these questions, talk to us about including testamentary Trusts in your Will. These structures exist as a way to provide for individuals in your Will while protecting the assets from being squandered. 

8. Failing to revise a Will after a divorce or remarriage

Getting married or divorced automatically revokes a Will, unless you have covered it with a specific contemplation clause. 

Having your Will invalidated accidentally can lead to more than just disappointment but disastrous legal battles by disaffected beneficiaries.. Without a Will, your loved ones will have to deal with the default law of intestacy – a strict formula that divides your assets among family members regardless of their needs, age, or strength of their relationship with you: for example a very young child who is very close to you is treated the same as a much older child who has been estranged from you for decades.

That’s why it’s a good idea to revisit your Will any time your relationship status changes, or you are thinking about getting married or divorced. The right advice at the right time can prevent huge heartaches in the future.

9. Overlooking non-estate assets

When making a Will, it’s vital you understand the difference between estate and non-estate assets. Non-estate assets like superannuation, family Trusts, and assets owned jointly don’t automatically fall into your estate – this means they won’t be covered by your Will and need their own strategy. If you don’t properly account for these assets, there can be unfair and devastating outcomes for your beneficiaries – including potentially avoidable taxes – making it more likely your estate will be contested. Working with skilled estate planning lawyers to ensure all of your assets are dealt with – within your Will and outside of it – can keep these issues under control.

10. The ‘just give them something’ myth

Giving someone a small sum in your Will doesn’t mean they won’t or can’t contest it. What’s key is whether their share of your estate is considered adequate and proper in all the circumstances and having regard to their and your particular situations. The tricky part is finding the right balance, given how easily someone’s means and needs can change over time. 

It is a perilous myth to think that a token amount or a clause to disinherit challengers will safeguard your estate. In reality, these clauses hold no legal weight and are simply overlooked by the Court. It’s how well the Will is constructed and whether the division of assets is proper in the eyes of the law that ultimately matters.

11. Thinking you don’t need a Will because you don’t have many assets

Another mistaken belief we hear often is that you don’t need a Will because you have minimal assets – especially if you are a young adult just starting out. Many forget about superannuation and life insurance, two sources of wealth that can greatly boost your estate’s value. 

For example, a life insurance policy attached to a super fund might be worth up to $250,000 or more. Unexpected deaths due to accidents or workplace injuries can also result in more cash being tipped into the estate.

Regardless of how much you own, having a Will is crucial to ensure your assets end up going exactly where you want them to.

12. Thinking a DIY or off-the-shelf Will is enough

Opting for a DIY or online Will template might seem like a good cost-saver, but it’s often a false economy. DIY Wills can be vague and incomplete, and lead to incredibly costly legal battles later on. 

From what we’ve seen, the expense and hassle of rectifying these Wills often far outweighs the initial savings. The financial toll on your loved ones can be devastating, and potentially significantly diminish the inheritance you wish to leave behind. But the emotional cost to beneficiaries who struggle through dealing with a less than perfect Will can be incalculable.

13. Choosing the wrong Executor or Trustee

Your choice of Executor is critical to how your estate will be managed one day.  Executors (and Trustees) play distinct and crucial roles, and call for someone who can navigate these responsibilities with skill, diligence and a level head. 

Naming the wrong person can lead to major complications.

Often, choosing a close family member or friend can seem like a good idea – but they may not have the know-how (or stamina!) to manage complex estate issues. They may be too personally involved with some beneficiaries or some assets and it’s vital to think about potential conflicts, personal biases, and practical availability – including where your preferred Executor lives, and how quickly they would be able to step into action. Having a substitute Executor or two can also help to extend the “shelf-life” of your Will.

Our professional Wills and estates lawyers can guide you in making these key decisions, helping to provide peace of mind that your estate will one day be handled efficiently and objectively.

14. Failing to account for taxes and debts

A common oversight is not considering potential taxes and liabilities that could affect your estate. Outstanding debts can reduce what’s left over for your beneficiaries. Without thoughtful planning, your loved ones could encounter surprise tax bills – or find there’s not enough in the estate to settle debts. 

There are often simple and clever strategies that can be built into your Will to navigate and minimise issues like stamp or transfer duty on real estate, or to prevent imbalance among beneficiaries when various taxes affect different assets such as superannuation. 

Keeping good records, getting tax and/or financial advice, and engaging a reliable accountant can go a long way in backing your overall estate plan. Our estate planning lawyers will talk to your trusted advisers to make sure that your existing wealth structures and goals are factored into your estate plan, and everyone knows what to expect.

15. Forgetting to communicate your Will and wishes to your beneficiaries

Not discussing your Will or wishes with beneficiaries is a slip-up that can lead to confusion and disputes posthumously. Keeping your beneficiaries in the loop about your intentions can greatly reduce the risk of conflict or legal challenges later on. 

Of course, your Will is personal and there’s no obligation to share it or any part of it- but transparency with your family about what’s in it can go a long way to preserving harmony. 

For bonus points, make sure the right person knows where your Will is, and how to access it. Lost Wills, or Wills no one knows about, can undo all of your best intentions – especially when you have carefully prepared one that captures your lasting wishes. If no Will can be found, the intestacy laws are triggered, leading to your assets being divided by default formulae that often results in unexpected and unfortunate outcomes. 

Avoid these Will mistakes: contact our legal team today

Concerned about mistakes in your Will or the possibility of high costs? Working with a trusted estate planning lawyer ensures your Will is not only legally sound, but gives you peace of mind that your loved ones will be looked after and your estate managed properly. 

At Solomon Hollett Lawyers, our team of experienced estate planning attorneys are here to guide you through creating a comprehensive estate plan that meets your unique needs. Reach out for a free 15-minute phone consultation to secure your legacy with confidence. 


Brandon Hetherington has considerable experience across the realms of Wills and estate planning, probate and family provision claims, property law, commercial law and litigation. Brandon’s work has seen him appear frequently across the Magistrates Court, District Court, Supreme Court, and the State Administrative Tribunal.