Common Mistakes to Avoid When Making a Will
A will is one of the most important legal documents you will ever prepare. A well-drafted will protects your intentions and reduces the risk of misunderstandings at an already difficult time.
And yet up to 60% of Australians do not have a will, according to a 2022 survey. We talked about the four main reasons you need a will in a previous article. That is the why – now, let’s explore the how.
Even well-intentioned testators make errors that render their will ineffective, ambiguous or subject to legal challenge. Understanding the common mistakes to avoid when making a will can help you create a document that stands the test of time and fulfils its intended purpose.
Nine Common Mistakes to Avoid When Making a Will
1. Not Understanding the Extent of Your Estate
Your will only functions properly when you possess a clear understanding of what your estate actually includes. This often extends beyond the family home or cash in the bank. Superannuation, life insurance, business interests, digital assets, and jointly held property all behave differently under succession law.
Misunderstanding what does and does not fall into your estate, or failing to identify all assets, can result in partial intestacy. This is where some of your estate is distributed according to Western Australian intestacy laws rather than your wishes.
A comprehensive asset inventory is essential before drafting your will. Consider engaging with a wills and estates lawyer or financial advisor to map out the full scope and structure of your assets.
Read more: What Does “Intestate” Mean, and What Should I Do?
2. Choosing the Wrong Executor
Executors play one of the most significant roles in the process. They are responsible for:
- Administering your estate
- Gathering your assets
- Paying your debts
- Distributing your assets
- Communicating with beneficiaries
A common mistake to avoid when making a will is choosing someone because of their relationship to you, without considering their capability to manage complex financial and legal matters.
Many people default to choosing a family member or close friend. As long as they are trustworthy, organised, financially literate, and willing to undertake what can be a time-consuming role, this can work. However, consider appointing a professional executor or naming your lawyer as an alternative if your estate is particularly complex or if family conflicts may arise.
3. Failing to Include a Residue Clause
A residue clause addresses all assets not specifically mentioned elsewhere in your will. Without it, any overlooked assets may be distributed according to intestacy rules. This becomes particularly problematic if you acquire new assets after making your will.
While it’s best to review your will every three to five years or when your circumstances change, a residue clause can act as a safety net. It typically comes towards the end of your will, after specific gifts and debts have been addressed, and prevents anything from falling through the cracks.
4. Outdated or Incomplete Wills
One of the most common mistakes to avoid when making a will is assuming a will remains effective forever. It doesn’t.
For example, in Western Australia, marriage and divorce automatically revokes a previous will unless you specifically include provisions for the marriage or divorce. That might mean including a clause that states the will is made “in contemplation of” a planned marriage or divorce.
Life changes unexpectedly, but you should always try to update your will at the first opportunity. Marriage, divorce, the birth of children or grandchildren, new property, the sale of assets, or the passing of executors or beneficiaries: all these events should trigger a will review.
5. Using a Will Template or Forgoing Professional Legal Guidance
DIY wills and templates can appear cost-effective, but they carry a high risk of omissions and invalid provisions. Succession law in Western Australia contains specific rules about form, execution, and interpretation. Generic templates rarely address these nuances.
Many disputes in the Supreme Court arise from poorly drafted home-made wills. While template wills may seem convenient, they often contain ambiguous language, fail to address tax implications, omit critical clauses, or do not comply with legal execution requirements.
6. Poorly Worded or Vague Provisions
Ambiguous language is one of the leading causes of will disputes. Phrases like “divide fairly among my children”, “my valuable jewellery”, or “my house” can be misinterpreted.
You must describe each gift with precise, unambiguous language that identifies both the beneficiary and the asset. If you’re making conditional gifts, the conditions must be clearly expressed and legally enforceable.
7. Execution Errors
A will must be properly executed according to the requirements of the Wills Act 1970 (WA) to be legally valid. For starters, it must be:
- In writing
- Signed by you (or by someone in your presence and at your direction)
- Witnessed by two or more people present at the same time
Any alterations must be handled properly, meaning not handwritten. They must also be properly executed, signed by the will maker and two witnesses, all present at the same time.
8. Neglecting Tax and Estate Planning Considerations
A will is only one component of an estate plan. Without proper estate planning, liabilities like capital gains tax and superannuation death benefits tax can significantly reduce the value passed to your beneficiaries.
Wills and estates lawyers work alongside financial advisers to develop strategies that maximise the benefit to your loved ones while decreasing the likelihood of administrative complications.
9. Poor Storage or Accessibility
Even the best-drafted will cannot operate effectively if no one can locate it. Store your will securely and share its location with the executor and trusted family members. Most wills and estates lawyers in Perth will offer secure storage for original wills.
If you choose to store your will yourself, don’t stash it in a desk drawer, filing cabinet or among personal papers. This creates unnecessary difficulties for your executor and may delay estate administration.
The Importance of Professional Guidance
A valid will requires more than simply writing down your wishes. It must comply with formal legal requirements, anticipate potential issues, and be drafted in a way that minimises uncertainty.
Working with a wills and estates lawyer ensures your will is clear, complete, and legally enforceable. Professional guidance also helps you understand how your broader estate planning structures interact with your will, reducing the risk of unintended outcomes.
Taking these steps is an act of care for those you’ll leave behind. It is also the easiest way to prevent the common mistakes to avoid when making a will.
At Barnard Lawyers, we offer a flexible mobile wills service, and we can come to you whether you live in Balcatta or elsewhere. Should you wish to discuss further, please contact us by calling 08 6114 5920 or emailing info@barnardlawyers.com.au.
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