Making a Will often brings complex emotions to the surface. For many families, the question of how to divide assets isn’t just a legal matter. It can also be personal.
Parents worry about doing the right thing. Children hope to be treated fairly. And somewhere in the middle sits a quiet but powerful assumption; the assumption that “fair” also means “equal”.
Life rarely plays out that neatly.
Relationships change. Circumstances shift. And sometimes, dividing an estate equally between children or beneficiaries isn’t what feels right or what makes sense.
So what does the law actually say? And how can you make decisions that honour both your own wishes and those of your family?
Does a Will have to be shared equally?
No, a Will does not have to be shared equally. In Western Australia, there is no legal requirement for a parent to divide their estate evenly between children or other beneficiaries. The law gives you what’s known as testamentary freedom, which is the right to leave your assets to whoever you choose, in whatever proportions you decide.
This means you can structure your Will based on what feels appropriate for your family. That might be equal shares across the board. Or it might reflect deeper considerations, such as differing levels of financial need, past support, or the nature of your relationships.
What happens if you don’t share your estate equally?
That said, testamentary freedom isn’t a licence to make arbitrary decisions. Unequal Wills can potentially lead to disputes, especially if someone who expected to inherit is left out or receives less than they believe is fair.
The 2025 Inheritance State of Play in WA Report reveals that 60% of Western Australians anticipate an inheritance dispute within their family, most commonly between siblings. And with 74% of estate challenges succeeding when they reach court. These aren’t just idle concerns.
Planning your estate is about more than just dividing numbers. It’s about making thoughtful, well-documented decisions that reduce confusion, honour your values, and stand up to scrutiny if challenged later on.
What ‘fair’ might look like (when equal isn’t right)
Fairness in a Will isn’t always about equal shares. Sometimes, treating everyone the same can create more tension than originally anticipated.
You may choose to leave more to one child because they’ve sacrificed work to become your carer. You might want to recognise the financial struggles of a beneficiary living with a disability. Or you may decide to account for earlier gifts, such as helping one child buy their first home. In blended families, you may want to provide for a stepchild who isn’t legally entitled to inherit unless named in the Will.
These are common, deeply personal decisions. Under Western Australian law, they are also entirely valid. But these decisions require care. A Will that feels fair to you could feel deeply unfair to someone else, particularly if they don’t understand the reasons behind it.
The legal reality: WA law and your rights as a Will-maker
Under the Family Provision Act 1972 (WA), certain people – such as spouses, de facto partners, children (including adult and stepchildren in some cases), and other dependants may be eligible to challenge your Will if they believe they haven’t been adequately provided for.
When someone brings a claim under the Family Provision Act, the Supreme Court of WA will consider a range of factors, including:
- The size and nature of your estate
- The financial position of the person making the claim
- The nature of your relationship with them
- Any obligations or responsibilities you had towards them
- The needs of other beneficiaries
This is where the difference between what is legal and what is reasonable becomes important. A well-drafted Will takes both into account.
What happens if you leave unequal shares?
Choosing to divide your estate unequally isn’t wrong by any means, but it can carry consequences if it’s not handled with care.
Sometimes, unequal gifts trigger confusion, resentment or deep hurt, especially if there’s no explanation left behind. In other cases, they lead to full-blown disputes that pull families into lengthy legal processes, often at great emotional and financial cost.
The risk is highest in situations where:
- One child receives significantly more or less than the others
- A child or stepchild is left out entirely
- A beneficiary has a clear financial need or caregiving history that’s not reflected in the Will
- There’s a lack of explanation for the distribution choices
Our tip is if you’re planning to leave unequal shares, the key is not just what you decide, but how you document and communicate it.
How to reduce the risk of disputes
A Will that’s clear, considered and properly drafted is one of the best ways to protect your legacy and your family.
If you’re planning to leave unequal shares, there are steps you can take to reduce the risk of conflict or challenge later on.
Document your reasons
You can include a letter of wishes alongside your Will to explain the thinking behind your decisions. While not legally binding, it gives your Executor context and may help prevent misunderstandings.
Be specific and unambiguous
Avoid vague terms such as “fairly” or “as appropriate”. Be clear about exactly who receives what, and under what conditions.
Get tailored legal advice
A well-structured estate plan goes beyond the Will itself. An experienced estate planning lawyer can help you anticipate risks, structure gifts appropriately, and ensure your wishes are legally robust.
Review your Will regularly
A Will written ten years ago might not reflect your current relationships or financial situation. Regular reviews are essential, especially after major life changes.
Acknowledge gifts made during your lifetime
If you’ve given financial help to one child during your lifetime, consider whether and how to account for that in your Will.
A fair estate plan starts with clear, considered legal advice
Fairness means different things in different families. Some estate plans call for equal shares. Others need a more tailored approach.
At Solomon Hollett Lawyers, our estate planning lawyers in Perth help you make decisions that reflect your intentions and reduce the risk of inheritance disputes. We take the time to understand your situation and give you practical, strategic advice, so your Will protects the people you care about most.
If you’re facing concerns about a Will or potential dispute, we offer a free 15-minute phone call with one of our inheritance dispute lawyers. It’s a straightforward way to understand where you stand and what to do next.
Need advice? We’re just a phone call away
Our team are here to guide you. Take the first step towards resolving your legal matter in a smart and efficient way with Solomon Hollett Lawyers.
