Planning for Drafting your Will

A general guide to the will drafting experience with legal insights

Topics: Estate Law - Succession Planning - Will Drafting - Trustee/s and Executor/s

27 August 2025, Angophora Legal

At the outset, drafting a will may seem relatively straightforward and there are several do-it-yourself kits available. In our experience however, successful will drafting requires careful contemplation and skillful drafting by a trained legal professional. In this article, we address some of the increasingly common issues arising in the drafting of modern wills in NSW.

Identifying Assets and Liabilities

Will disputes can often arise where the will drafter has not carefully considered what assets and liabilities will be captured by a last will and testament. Furthermore, it is very difficult to draft a will without having the professional knowledge of how Estates are administered in NSW. Estate planning with a legal professional is essential to drafting a precise will, as a will drafter cannot contemplate how an estate will be administered without having a clear understanding of the deceased’s assets and liabilities. Expert will drafting is best achieved by a solicitor and client working collaboratively to carefully review any assets and liabilities. Common issues arise regarding the distribution of superannuation assets and business assets which are often not captured in a will. The legal ownership of an asset is also often a critical factor in will drafting and succession planning. In NSW there has been an increase in litigation in recent years over estate disputes. One possible factor is the steady increases of property values in NSW and the increased costs of housing and everyday expenses. These conditions have also seen a new trend whereby NSW residents may also be likely to have larger amounts owing to banks and financial institutions under loans and mortgages. In some scenarios, a client may wish to gift a particular property to a specific beneficiary, however this may not be possible unless the will drafter and the client have factored in any debts likely to be owed by the estate at the time of distribution.

Choosing your Executor/s

An executor plays an important role in administering a deceased estate and executors have to make significant decisions throughout the administration process. These decisions will be made far easier when aided by the deceased leaving a will which has been professionally drafted by a solicitor. Executors have to take active steps to identify and call in assets and liabilities as well as attending to disposing or transferring of assets and distributing gifts to beneficiaries. This can be a time consuming process and generally executors do not receive payment or commission for their time and efforts. These decisions require careful record taking and involve ongoing communications with banks, financial institutions and beneficiaries. If there are any disputes over a deceased estate, your executor will play a crucial role in managing any dispute resolution processes. In these circumstances, is it crucial when drafting wills to appoint the most suitable person or persons to act as executors. Furthermore, clients should always consider having an alternate appointment plan in circumstances where their nominated executor may refuse to act or are unable to act. The value of real estate, motor vehicles, artworks and jewellery can often be a point of contention between beneficiaries and valuations may be required prior to distributing assets. Executors must act impartially in this process, however it is often the case that an executor or executors are beneficiaries of the estate and the executor is often related to the deceased and the beneficiaries. In our experience, due to the significant increase in property values in NSW, there can often be disputes between beneficiaries in respect to deceased assets worth millions of dollars. In these circumstances, if you are planning to attend to drafting or updating your will, you should engage a solicitor to assist you with drafting a professional will that reflects your estate or succession planning.

International Wills and Estates

In an increasingly globalised world, and where many NSW residents have strong connections to overseas jurisdictions, scenarios often arise where a deceased person can leave wills in different countries and may have multiple assets such as property in different countries. If the will/s have not been professionally drafted, this can cause significant complexities and delays in administering an estate. As different countries around the world have different laws applying to the administration of estates, expensive legal proceedings may be required which can dilute estate assets and result in significant delay in distributing assets to beneficiaries. If you have assets outside of NSW, it is critical to have a lawyer draft your will to avoid complexity and uncertainty in the administration of your estate.

Estate Challenges

In succession law, there can be challenges to the administration of an estate in accordance with a last will for various reasons including (i) ambiguous or disputed clauses in a will, (ii) challenges to the capacity of the deceased person at the time of signing a will, in addition to (iii) both beneficiaries and non-beneficiaries of a will commencing proceedings (family provision claims) in the Supreme Court of NSW seeking a greater share of a deceased estate than what is left to a person under a will. In any of these circumstances, an executor ought to obtain legal representation to ensure they receive proper legal advice and professional legal representation in any estate dispute or any matter before the Court. There as been an increase in family provision claims in NSW in recent years, a family provision claim is where a relative, spouse, dependent or third party seeks a greater share of a deceased estate. In these cases, the Court will consider the intentions of the deceased as one of several factors to be addressed by the Court in determining the outcome of any family provision claim. Engaging a lawyer to draft your will is essential as your lawyer will be able to guide you in addressing the potential for any claims against your estate in the future. For the same reason that a legal professional will be more informed when it comes to drafting wills if they have practical experience of acting for executors in administering an estate, it follows that an experienced solicitor who has acted for claimants or executors in family provision claims will be better positioned to advise clients about will drafting and succession planning.

Preparing for Contingencies

If a situation arises where a will does not completely distribute assets of the deceased, an intestacy can arise in respect to some or part of the deceased’s assets. In these circumstances, the law is governed by NSW legislation which will normally establish a priority regime for distributing any remaining assets to surviving relatives under the Succession Act 2006 (NSW). This process is generally not discretionary and may or may not be consistent with the wishes and intentions of the deceased in circumstances that a will has not been professionally drafted. Another significant factor which is often overlooked when people draft their own wills without a lawyer is what will happen in an estate administration where a single person or multiple beneficiaries pass away prior to the deceased passing away. In these circumstances, a gift may fail or lapse and the Succession Act 2006 (NSW) will again govern what happens in those circumstances which may or may reflect the will maker’s wishes. Finally, you may also wish to consider a fallback provision for dealing with circumstances where there may be no beneficiaries to an estate. This step is often overlooked when individuals draft their own wills without engaging a solicitor or lawyer.

When it comes to will drafting and succession planning, there are often complexities and complications that require careful legal analysis and contemplation to ensure proper and effective will drafting.

At Angophora Legal, we have the experience of acting for executors in administering estates (including applying for a Grant of Probate or Letters of Administration) as well as acting for both claimants and executors in highly contested family provision claims and will validity challenges. With this experience in estate litigation, we are well positioned to guide you through your succession planning and to ensure your last will and any supporting documents are professionally drafted to accord with your wishes and instructions. We offer home visitations to elderly or immobile clients and we will do our very best to accommodate your individual requirements. Fixed fee services are available for will drafting and drafting of powers of attorney and guardianships.

Please contact our firm on (02) 9238 2274 or email info@angophoralegal.com.au to discuss your enquiry and obtain a quote.