Many people assume that once they sign a Will, their wishes Will automatically be carried out. Unfortunately, that is not always the case. Disputes about wills have increased in recent years, and in some cases the problem is not family disagreement alone, but that the Will was unclear, incorrectly prepared, or did not properly take account of how assets were owned.
Granted, many of these disputes involve beneficiaries challenging their inheritance - but a portion are attributable to Wills that simply have not been prepared properly, or where adequate legal advice has not been provided, resulting in the need for the court to intervene.
Common problems with Wills: ambiguity, errors and validity
If your Will is unclear, the court may need to decide what it means, including considering the proper ‘construction’ of the Will. If it contains an error, or has been incorrectly executed (impacting its overall enforceability and/or the entitlements of beneficiaries), a beneficiary may need to ask the court to ‘rectify’ the error or confirm that the Will is valid, despite the error.
This can create delay, uncertainty and additional cost for your estate and your loved ones.
Why asset ownership matters in Will drafting and estate planning
It is also important to remember that not every asset passes under a Will. For example, jointly owned property Will pass automatically to the surviving owner, regardless of what the Will says. That means a gift in your Will may fail if the asset is not actually part of your estate at the time of your death.
If a Will maker’s assets (and their ownership) are not properly verified, this may result in unintended outcomes when the Will maker passes away - for example, where the Will attempts to gift a beneficiary an interest in a non-estate asset that does not pass through a Will (e.g. jointly owned property or assets owned by a family trust).
When Wills fail to operate as intended
The NSW District Court's recent decision in Lofts v Lawcover Insurance Pty Limited [2026] NSWDC 68 centred around this issue. In that case, the Will maker had a blended family and owned property with his de facto partner as ‘joint tenants’.
The Will maker intended that his child would receive a share of certain property on his passing. However, because the property was owned jointly with his de facto partner, it passed automatically to the surviving owner and did not form part of the estate - thus bypassing his Will.
This was not the Will maker’s intention and resulted in the will maker’s only child not receiving his share of the property.
The solicitor who prepared the Will did not explain the impact of joint ownership to the Will maker. Fortunately, in this case, the beneficiary (the Will maker’s only child) was able to bring a successful claim against the solicitor’s professional indemnity insurer because the deceased had been misinformed.
The court held that the solicitor owed a duty of care to the intended beneficiary and had breached that duty by failing to advise the Will maker of the need to sever the joint tenancy on the property.
What this means for Wills and estate planning solicitors
Solicitors preparing Wills owe a duty of care to both their client (the Will maker) and, in certain circumstances, intended beneficiaries, to act with reasonable skill and care. Negligence can occur if a duty of care was owed, breached (acting below the standard of a reasonably competent solicitor), and that breach directly caused financial loss to the estate or to the intended beneficiaries.
It has never been so important for solicitors preparing Wills to take a cautious and risk adverse approach to estate planning, not only to ensure they limit their exposure to claims for negligence, but also that the Will maker’s objectives are achieved.
The preparation of Wills (despite any apparent lack of complexity) is now more than ever a niche skill set, one that demands specialist experience and a holistic approach to the client’s personal and financial circumstances. This is particularly important with the increasing occurrence of blended families in today’s society.
So, what can we take away from this? Exercise extreme care and caution when preparing Wills! In every matter we (solicitors) need to be conscious of our duties to clients and in some cases, third parties.
Estate planning considerations for individuals and families
Estate planning requires careful consideration of your family circumstances, your asset structure and your overall objectives. This is particularly important where blended families, family businesses or jointly owned assets are involved.
To reduce the risk of unintended outcomes, it is important to engage an experienced Wills and estate planning solicitor who can provide clear, tailored advice and take into account all relevant aspects of your personal and financial position.
Barry Nilsson’s Wills & Estates team advises on all aspects of estate planning, and we work with individuals and families across Australia. We focus on delivering practical, considered advice that ensures your Will works in practice, not just on paper, and that your wishes are carried through with clarity and certainty.
We can deliver advice in a way that best suits you – whether that’s face-to-face, over the phone, by video conference, or email.
We invite you to get in touch if you would like to arrange a confidential discussion.
