Wills are more than legal paperwork—they’re personal roadmaps for your loved ones when you’re no longer here. Yet, thousands of Australians pass without one or with a poorly drafted version that sparks confusion or court disputes. The truth is, having a watertight will can save your family stress, money, and time.
Whether you’re starting from scratch or updating an old one, this guide will break down how to write a valid will, what to avoid, and how the law sees it in today’s world. We’ll dive into real-life cases, share expert tips, and explain how future changes might affect what’s legal today. If you want peace of mind and a solid plan, you’re in the right place.
Starting with the basics, wills and estate planning can feel overwhelming, but you don’t need to tackle it alone. With the right tools, knowledge, and guidance, it becomes simple—and powerful.
Why Wills Fail: Avoiding the Most Common Pitfalls
It’s one thing to write your wishes on paper. It’s another to ensure they stand up in court. Many wills fail because of small, avoidable mistakes. Missing signatures, unclear wording or choosing the wrong person as executor can all cause headaches later.
One major pitfall is not meeting formal requirements. Under Australian law, a will must be in writing, signed by the testator, and witnessed by two people. Sounds simple—but you’d be surprised how often this is overlooked.
Another problem is unclear instructions. For example, if you say, “I leave my car to my nephew,” but you have two nephews, that’s a legal grey area. The court might then step in to decide your intention. Ambiguity can lead to delays or even disputes.
Outdated information is another issue. Wills should reflect your current assets and relationships. If you remarry or sell a major asset, your will should change too. If not, unintended people may inherit parts of your estate.
People also forget to name backup executors or guardians for their kids. If your chosen executor can’t fulfil their role, the court will appoint one. This can mean delays and costs that your loved ones must shoulder.
Here’s a practical example: A man in Melbourne drafted his own will using a free online template. He didn’t get it witnessed properly, and some of his instructions were vague. After he passed, the family had to spend nearly $20,000 in legal fees sorting things out.
It doesn’t need to be this hard. If you learn the most common mistakes people make when writing a will, you can easily avoid most of them.
The Risks of DIY Will Kits and Online Templates
DIY will kits are tempting. They’re cheap, fast, and available online. But in many cases, they do more harm than good. These templates often skip the fine details that make a will legally binding or easy to understand.
The problem with one-size-fits-all is that families and estates are never the same. A DIY kit might not cover blended families, trusts, superannuation, or foreign assets. These are real issues that come up all the time, especially in Australia’s diverse population.
Another issue is witnessing. Even if the instructions say to have two witnesses, the placement of signatures matters. If witnesses sign on a separate page or not in your presence, your will can be challenged.
A major case in Queensland involved a woman who filled out a DIY will kit and left her entire estate to one son. But she forgot to sign one page. When she died, the other siblings contested the will, and the court ruled it invalid. Her estate was then divided equally, going against her actual wishes.
Lawyers spend more time fixing DIY wills than they do drafting new ones. Many cases end up in court, dragging out probate and draining the estate’s value.
If you think it’s a cheap solution, think again. You might save money now, but it could cost your family down the line. It’s safer to see how DIY wills can lead to costly legal issues before going that route.
How Courts Handle Disputed or Poorly Drafted Wills
Even with the best intentions, not all wills hold up. If a will is unclear, outdated or unfair, courts can intervene. When they do, they look at legal principles like testamentary capacity, intent, and whether someone was left out unfairly.
Disputes often arise when someone close to the deceased is excluded or feels the will doesn’t reflect the true wishes. Family provision claims are common in Australia. These let people challenge a will if they believe they were unfairly left out or didn’t get enough.
Courts also look closely at language. If your wording leaves room for doubt, your executor may struggle to carry out your wishes. For example, saying “my jewellery to my daughter” without listing which pieces can lead to disagreements among family members.
A recent example involved a blended family. The father left everything to his new wife, assuming she’d take care of his kids from a previous marriage. After his death, the wife updated her will and left everything to her own children. His kids received nothing. The court couldn’t change the outcome, as his original will had no safeguards.
That’s why lawyers often include testamentary trusts or special clauses that protect beneficiaries in complex family setups. These tools offer flexibility and legal strength.
The takeaway? Courts aren’t out to change your wishes—they just want clarity and fairness. You can explore how recent court cases shaped will and estate planning to understand how these situations play out in real life.
Legal Requirements for a Valid Will in Australia
A will isn’t valid just because you write it. Australian law sets out clear rules for what makes a will legally binding. Here’s what you need to know.
First, the testator (that’s you) must be over 18 and have sound mind. This means you understand what a will does, what your estate includes, and who your beneficiaries are.
Second, the will must be in writing. Handwritten or typed—either is fine. But verbal promises or text messages don’t count, even if they seem clear.
Third, you must sign the will in front of two witnesses. They must also sign in your presence. These witnesses should not be beneficiaries, or their gifts could be challenged.
Then there’s language. Use simple, direct wording. Avoid vague terms like “all my stuff” or “whatever is left.” Spell out who gets what, how, and when. If you want conditions on gifts, make them clear.
Don’t forget to name an executor. This is the person who carries out your wishes, pays debts, and handles legal paperwork. Choose someone responsible and willing.
If you want to include guardianship for minor children, be clear about who you trust and why. Courts give weight to your wishes, though they’ll always act in the child’s best interest.
To make it rock solid, get legal advice. A lawyer can check the structure, ensure it meets legal standards, and help with complex scenarios.
To understand what makes a valid will under Australian law in more detail, reviewing real legal guidelines is a great place to start.
Why You Should Review and Update Your Will Regularly
Writing a will is step one. But life changes—and so should your will. You should review it every few years or when big changes happen.
Major triggers include marriage, divorce, having children, buying property or starting a business. Any of these can shift your priorities and affect how your estate is divided.
For example, if you divorce but forget to update your will, your ex might still be listed as a beneficiary. That’s not ideal. In some states, marriage or divorce automatically revokes parts of your will—but not always.
Let’s say you welcome a new child. If they’re not added to the will, they could be left out by accident. The court may step in, but this creates stress and delays for your family.
Updating your executor is also important. If your original executor has died, moved overseas, or no longer wants the job, you need a replacement.
Small changes can be made with a codicil—a legal update to your will. Bigger changes usually mean drafting a new will entirely.
Don’t just set and forget. Wills need maintenance like any other legal document. Make a habit of reviewing it every three to five years.
You’ll find it helpful to find out why updating your will matters more than you think, especially when planning for the long term.
Choosing the Right Executor and Planning for the Unexpected
Picking the right executor is a crucial part of your estate plan. This person will manage everything after your death—from funeral arrangements to asset distribution. It’s a big job and not everyone’s cut out for it.
Look for someone trustworthy, organised, and emotionally stable. They should also be willing. It helps if they have basic financial or legal knowledge, but they can always hire professionals for support.
You can name more than one executor. This helps if one is unavailable or if you want checks and balances. Just make sure they get along, or conflicts could arise.
Backup plans are also important. If your main executor dies or can’t act, your will should name a substitute. Without one, the court steps in and appoints someone.
In complex estates, consider a professional executor. This could be a lawyer or trustee company. They’ll charge a fee, but they bring experience and neutrality.
Also think ahead. What if a beneficiary dies before you? Or a guardian for your child becomes unfit? Your will should address these “what if” scenarios with fallback clauses.
Finally, store your will safely. Give a copy to your executor and let your family know where to find the original. A lost will is as bad as no will.
FAQs About Drafting a Will in Australia
1) Can I write my own will without a lawyer?
Yes, you can, but you need to be cautious. Writing your own will without legal help might seem like a good idea—especially with all the DIY kits and free templates floating around online—but they often miss the mark.
The problem isn’t just about getting your wishes down. It’s about making sure your will is legally valid and can stand up in court. You need to follow strict rules around signing, witnessing, and structure. If you get even one of those wrong, your will could be challenged or thrown out completely.
Another issue is complexity. If you own property, have kids from different relationships, run a business, or hold assets overseas, a basic will kit won’t cover you. The same goes for superannuation and trusts, which are common parts of Australian estates.
In some cases, people try to save a few hundred dollars and end up costing their family tens of thousands in legal fees later. If your will is contested or unclear, the court may have to step in and decide who gets what.
So while it’s legal to write your own will, it’s not always smart. If your life or assets are anything beyond simple, you’re better off getting legal advice to make sure everything’s clear, legal, and secure.
2) What happens if I die without a will?
If you die without a valid will, you’re considered to have died “intestate”—and that brings a whole lot of complication. In this case, the law decides who gets your assets, not you.
Each state in Australia has its own intestacy laws. Usually, your spouse and children will inherit first. But how that’s divided depends on the state and your family setup. If you have a blended family, or no direct family, things get even messier.
Let’s say you’re single with no kids, but you want to leave everything to your best friend or a charity. Without a will, that won’t happen. The law will pass your assets to your parents, siblings, or more distant relatives—even if you haven’t spoken in years.
Not only that, someone will have to apply to the court to manage your estate. This process can be slow, costly, and emotionally draining for the people you leave behind.
You also lose the chance to name guardians for your children or make any personal wishes known. The court will step in and make decisions based on general rules, not your personal values or intentions.
In short, having no will means giving up your say in one of the most important areas of your life. It’s always better to have even a basic will than none at all.
3) How do I choose the right executor?
Choosing the right executor is one of the most important decisions you’ll make when drafting your will. This person will be responsible for managing your estate, handling paperwork, paying off debts, and making sure your assets go where you want them to.
You need someone you trust—someone responsible, organised, and emotionally level-headed. It could be a family member, a close friend, or a professional like a solicitor or trustee company.
Before naming them, ask if they’re willing to take on the job. Some people say yes out of politeness, then feel overwhelmed later. It’s okay to name more than one executor. Just make sure they can work together, or it might cause delays or disagreements.
Also, consider naming a backup executor in case your first choice passes away or becomes unable to act. Without a named alternative, the court might appoint someone you wouldn’t have chosen.
In more complex estates, or if family tensions are high, it might be worth naming a neutral party. A professional executor charges a fee, but they bring experience and avoid emotional conflict.
Think of your executor like a project manager—they don’t need to know everything, but they should be organised enough to get help when they need it.
4) Is my superannuation covered in my will?
This is one of the most misunderstood parts of estate planning. In most cases, your superannuation is not automatically covered by your will.
Why? Because super is held in a separate trust, managed by your super fund. The trustee of the fund—not you—decides where it goes when you pass away. Unless you’ve put a binding death nomination in place, your super fund might choose to pay it to your spouse, kids, or your estate, depending on the circumstances.
A binding death nomination is a formal instruction to your fund, telling them exactly who should receive your super (and any insurance attached). It needs to be in writing, signed, witnessed, and updated regularly—usually every three years.
If you don’t nominate anyone, the fund has discretion. That means someone you didn’t intend could end up with your super. Or it could go into your estate, which could affect tax and cause delays.
If you want to be thorough, make sure your will aligns with your super nominations. Talk to your fund, check your forms, and make it all line up. Don’t assume your super is automatically dealt with—it’s a separate process, and it matters.
5) How often should I update my will?
Think of your will as a living document. It’s not something you do once and forget about. Life changes, and so should your will.
You should review your will:
- Every 3 to 5 years
- After marriage or divorce
- When you have a child or grandchild
- If your executor or beneficiaries die or become unavailable
- When you buy or sell major assets
- If your financial or family situation changes
Let’s say you wrote a will 10 years ago when you were single, but now you’re married with two kids and own property. If you haven’t updated your will, it likely doesn’t reflect your current wishes—or protect your loved ones properly.
Also, laws change. Something that was legal or standard practice a decade ago might not work today. A quick legal review can catch those changes and help you adjust accordingly.
If it’s just a small change, you can use a codicil. But for anything major, it’s usually better to write a new will and revoke the old one.
Set a reminder every few years to check your will. It only takes a few minutes to review, and it could save your family a lot of stress later.
Protect Your Legacy With a Solid Plan
Writing a legally sound will is one of the most thoughtful things you can do for the people you care about. It removes confusion, cuts down legal costs, and helps your loved ones focus on healing rather than fighting.
Whether your estate is simple or complex, having a valid, up-to-date will means you stay in control. It gives clear direction, protects vulnerable family members, and makes sure your hard-earned assets go where you want them to.
We’re already seeing big shifts in how people approach estate planning—from online tools to changes in super rules and digital asset management. And that trend is only growing. More people are realising that a will is not just for the wealthy or elderly—it’s for anyone who wants a say in what happens after they’re gone.
So if you haven’t written your will yet—or haven’t looked at it in years—now’s the time. Don’t leave it to chance. Start today, while the decisions are still yours to make.
Need help getting it right? Talk to the team at Ignify Legal—we’ll help you draft a clear, legally binding will that fits your life, protects your people, and gives you peace of mind.
Please call us today at (02) 9413 4708 or submit an online enquiry.
