Biggest Mistakes Made in Estate Planning

Estate planning is one of the most important things you’ll ever do, but it’s often fraught with pitfalls. Simple errors can lead to years of family disputes, unexpected bills, and ultimately, your wishes being ignored.

Here are the biggest errors in Australian estate planning and how to avoid them.

1. Not creating a Will or not Updating Your Will

• The Mistake: Failing to create a Will at all (dying intestate) or creating a Will and assuming it’s a “set and forget” document. When your circumstances change your Will may need to be updated otherwise you are at risk that your Will either completed revoked, parts of your Will are revoked or it just no longer reflects your wishes. While divorce will generally revoke gifts to your former spouse, separation does not.
• The Consequence: If you die intestate, your estate is distributed according to rigid State laws, which may not align with your personal wishes, this can be made more complicated if you have separated but are not divorce and are in a new de facto relationship.

 

2. Invalid Execution

• The Mistake: Either not having the right witnesses or just not signing it correctly which could lead to a failure to meet strict legal requirements for validity.
• The Consequence: A Will must be signed by you in the presence of two independent witnesses (not beneficiaries, or their spouses) who must all be present at the same time and sign the document. Errors here can lead to the Supreme Court declaring the Will invalid, forcing your estate into intestacy laws.

 

3. Vague Language or too Specific Language

• The Mistake: Using unclear terms like “my family,” “my possessions,” or “a reasonable gift” or on the flip side being too detailed. For example if you wish to gift your motorbike to your daughter so in your Will you include provision to gift your daughter your Harley Davidson Bike but you later sell that bike and buy a Indian Chief or instead your collection has grown and  now you own 3 Harleys. Did you intend for your daughter to receive whatever motorbike or motorbikes you owned at the time of your death.
• Another common oversight is failing to state your personal details correctly. This seems pretty simple but often people forget that they have bank accounts opened that don’t include their middle name especially if they have multiple middle names.
• The Consequence: Vague wording forces the Executor and the Court to interpret your intent, often leading to arguments between family members. If a specific gift is no longer available to be gifted to the beneficiary at the time of your death this is known as ademption, and the beneficiary will now miss out.

 

II. Mistakes with Assets: The “Non-Estate” Trap

Many people assume their Will controls all their assets, which is a major error with significant financial consequences.

 

4. Ignoring Superannuation and Life Insurance

• The Mistake: Believing your Will controls your superannuation or the payout from your life insurance policy.
• The Consequence: Superannuation is held in a trust and is controlled by the fund’s Trustee. To direct who receives your super (including any attached life insurance), you must complete a Binding Death Benefit Nomination (BDBN). Without a valid BDBN, the Trustee has discretion, which may mean the funds go to the wrong person or are unnecessarily paid to your estate, where they could be subject to higher taxes.

 

5. Overlooking Jointly Owned Property

• The Mistake: Forgetting that property owned as Joint Tenants (common for spouses) does not form part of your estate.
• The Consequence: Assets held as Joint Tenants (e.g., the family home) automatically pass to the surviving joint owner under the Right of Survivorship, regardless of what your Will says. Your Will only deals with assets held as Tenants in Common.

 

6. Failure to Plan for Incapacity (No EPOA)

• The Mistake: Only focusing on the Will (death) and ignoring the risk of losing capacity during your lifetime.
• The Consequence: Without an Enduring Power of Attorney (EPOA), if you become mentally incapacitated (e.g., due to illness or accident), your family will have no legal authority to manage your bank accounts, pay bills, or sell property. They will have to apply to the relevant State Tribunal (like QCAT) or Court to have an administrator or guardian appointed, which is expensive, time-consuming, and stressful.

 

III. Mistakes with People: The Role of the Appointee

Choosing the wrong person for a key role is a common path to family conflict and mismanagement.

 

7. Appointing Unsuitable or Unwilling Executors/Attorneys

• The Mistake: Appointing someone based on love, not competence or proximity (e.g., an elderly sibling, an estranged child, or someone living overseas).
• The Consequence: The role of an Executor or Attorney requires significant time, financial literacy, and emotional resilience. Choosing someone incapable, unwilling, or uncontactable leads to delays, bad investment decisions, and family conflict.

 

8. Ignoring the Needs of Potential Claimants

• The Mistake: Intentionally excluding a spouse, child, or dependant from your Will based on personal grudges or assumptions that they are financially secure.
• The Consequence: The excluded person can make a Family Provision Claim against your estate if they believe you have failed to make adequate provision for their proper maintenance and support. Such a claim can lead to expensive and emotionally draining litigation that consumes much of the estate’s value.

 

9. Not Considering contingency plans

• The Mistake: Failing to include the next steps. It is easy to decide who you want to receive your estate but what if they are not around to receive it?
• The Consequence: The laws of intestacy will apply, and your estate will be disbursed to your next of kin.

 

 

How to Avoid These Common Pitfalls (Your Action Plan) 📝

Preventing estate planning mistakes requires diligence and specific legal steps. Follow this action plan to secure your wishes:

Mistake Category	Your Action Plan
Outdated/Invalid Will	Review your Will every 3–5 years. If you marry or separate, make a new Will immediately. Always have a legal professional supervise the signing to ensure valid execution.
Vague Wording	Use precise, full legal names for beneficiaries. Include a clear Residuary Clause to cover all remaining assets.
Non-Estate Assets	Complete a current Binding Death Benefit Nomination (BDBN) with your super fund. Clarify ownership of major assets (Tenants in Common vs. Joint Tenants).
Incapacity	Execute an Enduring Power of Attorney (EPOA) to appoint someone to handle your finances and health if you lose capacity.
Appointee Choice	Choose Executors and Attorneys who are competent, local, and willing to act. Always name alternates.
Potential Claims	If excluding a dependent, seek legal advice and document your reasons clearly in a Statement of Reasons to minimise legal challenges.
Tax Erosion	Consult a professional to explore structures like Testamentary Trusts to provide tax efficiency for beneficiaries.

 

How NB Property Law Can Help You Secure Your Legacy

NB Property Law provides the strategic advice needed to protect your estate from legal challenge, tax erosion, and administrative error. We don’t just draft documents; we provide a coordinated solution.

 

Comprehensive Service Offerings

• Wills & Estates Review Service: We ensure all your existing documents are current and legally valid following any major life change.
• Supervised Execution: We provide a fully supervised signing service for all documents, guaranteeing the legal validity of your Will and EPOA.
• Strategic Drafting: We use clear, unambiguous clauses in all documents, including a Residuary Clause, to prevent costly interpretation disputes.
• Asset Coordination: We conduct an Asset Audit to ensure your Will is coordinated with your superannuation (BDBN assistance) and property ownership (Joint Tenancy vs. Tenants in Common).
• Incapacity Planning: We draft robust Enduring Powers of Attorney to clearly define your Attorney’s powers, avoiding Tribunal intervention.
• Conflict Minimisation: We advise on the roles of Executors and Attorneys, and for complex estates, we can establish Testamentary Trusts for tax flexibility and asset protection.
• Risk Mitigation: We assist in preparing a legally sound Statement of Reasons to support your testamentary intentions if you choose to exclude a dependent.

 

Contact NBPL today for a comprehensive estate review and protect your family’s future peace.

 

Watch our webinar recap on:

Protecting Your Assets and Super: Could Your Wealth Be at Risk Without You Realising it?

You have worked hard to build your wealth, but are your assets truly protected? Many professionals assume their estate plan and finances are fine, only to discover later that loved ones are unprotected, superannuation is not covered, or financial blind spots have quietly cost them thousands.

Watch our webinar recap with  Kayleigh Swift, Director of NB Property Law, and Jessica Stroud, Financial Adviser from Wealth Without Worry, for a practical, eye-opening session designed to give you clarity, confidence, and actionable steps to safeguard your wealth now.