Estate planning is often seen as a straightforward task — write a Will, choose an executor, and distribute your assets as you wish. But in practice, poor planning, unclear intentions, or outdated documents can quickly lead to confusion, disputes, and costly litigation. From complex family dynamics to missteps in structuring assets like trusts and superannuation, there are many ways things can go wrong. In this article, we explore common estate planning mistakes that may lead to legal challenges — and how to avoid them with clear, strategic planning.
1. Not Having a Valid or Up-to-Date Will
Failing to have a valid or current Will is one of the most common causes of estate disputes. If a person dies without a Will (intestate), or with a Will that is outdated or improperly executed, it can lead to confusion, delays, and costly litigation. Family dynamics, asset structures, and personal wishes often change over time — a Will that doesn’t reflect these changes may no longer achieve the intended outcomes. Regularly reviewing and updating a Will with legal guidance ensures it remains valid and aligned with the testator’s wishes and circumstances.
2. Poorly drafted clauses that don’t achieve the intended outcome
Ambiguous or poorly worded clauses in a Will can result in unintended distributions and potential disputes. A common example is unclear proportional gifts. These kinds of drafting issues often result in confusion, delays in administration, and costly litigation between beneficiaries. To avoid this, homemade Wills should be avoided, and Wills should be drafted by experienced estate planning lawyers who use precise, unambiguous language and clearly define all interests and entitlements.
3. Overlooking jointly owned assets or assets held in a trust or partnership
A common mistake in estate planning is attempting to gift assets that aren’t legally part of the estate — such as jointly owned property or assets held in a trust or partnership. For example, property held as joint tenants passes automatically to the surviving owner, regardless of any conflicting Will provisions. Similarly, assets held in a discretionary trust are controlled by the trustee and do not form part of the deceased’s personal estate. Attempting to bequeath these types of assets in a Will can cause confusion, unmet expectations, and potential disputes among beneficiaries. Clear structuring and legal advice are essential to ensure intentions align with legal ownership and control.
4. Inadequate structuring of superannuation or trust interests
Superannuation and trust interests often fall outside the estate and are often not governed by the Will. Failing to structure these interests properly (such as not making a binding death benefit nomination for super) can lead to uncertainty over who should receive the benefits. This risk is especially high in blended families or where significant assets are involved. Additionally, not including provisions to segregate superannuation benefits (particularly in self-managed super funds) can result in tax inefficiencies or unintended distributions. Clear structuring, valid nominations, and tailored clauses in trust deeds and Wills are essential to ensure these assets are distributed according to the testator’s intentions and to minimise the risk of disputes.
5.Appointing the wrong executor or trustee
Choosing the wrong person to act as executor or trustee can create serious problems for an estate. An executor has a legal duty to act in the best interests of the estate and its beneficiaries — but if they lack the necessary skills, impartiality, or availability, it can result in delays, mismanagement, or even misconduct. This is particularly risky in families with conflict, where a biased or combative executor may inflame tensions. In complex or high-conflict situations, consider appointing a professional executor to ensure impartial and effective administration.
Conclusion
Effective estate planning goes beyond simply drafting a Will. It’s about clearly defining your goals and putting the right legal and financial structures in place to achieve them. Whether you aim to support loved ones, protect vulnerable beneficiaries, or minimise the risk of disputes, a well-structured estate plan must be clear, tax-effective, and tailored to your circumstances. With professional advice and careful attention to detail, you can ensure your wishes are honoured — and your legacy protected.
While the strategies discussed are general, seeking tailored advice based on your circumstances is crucial. The internationally recognised Private Clients team at Hall & Wilcox offers extensive expertise in simple and complex estate planning, navigating Will and trust disputes.
Want to know more? Get in touch with McLane.
