Common will drafting mistakes that cost families thousands
The most expensive will mistakes happen in the drafting, not the witnessing. Here are the biggest ones, and how to avoid them.
Most people worry about will formalities – the signing and witnessing. But the expensive mistakes happen in the drafting. Ambiguous wording, missing substitute beneficiaries, and super-will mismatches cause the disputes that cost families tens of thousands of dollars.
The most expensive drafting mistakes
1. Missing substitute beneficiaries
If a named beneficiary dies before the testator, the gift ‘lapses’ and falls into residue – unless a substitute is named. This is one of the most common avoidable mistakes.
Example: ‘I leave $100,000 to my sister Mary’. If Mary dies before you, the $100,000 goes to residue. Was that your intent, or did you want it to go to Mary's children? Unless you specified, it's a guess.
2. Ambiguous asset descriptions
‘My jewellery to my daughter’. Which jewellery? The engagement ring? The family heirlooms? The costume pieces? Vague wording invites family dispute.
3. Super not addressed
Super doesn't automatically pass through the will. Many people assume it does. A properly drafted will coordinates with binding death benefit nominations – but most DIY wills don't.
4. No residuary clause
Any asset not specifically gifted falls into the residue. Without a residuary clause, that residue passes by intestacy – not under the will. The result: part of your estate passes according to your wishes, part doesn't.
5. Executor without substitutes
If your named executor dies before you or is unable to act, and no substitute is named, your estate needs an administrator appointed by the court. This is slow and expensive.
6. Ademption problems
Specific gifts can fail if the asset doesn't exist at your death. ‘My Ford to my nephew’ – if you sold the Ford and bought a new car, your nephew might get nothing. Proper drafting handles replacement assets.
7. Guardianship not addressed
For parents of minor children, failing to nominate a guardian means the court decides. This is often the most stressful aspect for families without a proper will.
8. Testamentary trust gaps
A poorly drafted testamentary trust can undo itself – missing trustee succession, unclear distribution powers, or tax-disadvantageous structures. Getting the basics right makes a 10x difference in long-term tax and protection outcomes.
The cost of fixing mistakes
Court applications to interpret ambiguous wills cost $10,000 to $40,000+. Family disputes that end in litigation can run into hundreds of thousands. The cost of a properly drafted will – $550 to $3,500 – is trivial by comparison.
The pattern
Almost every expensive will dispute traces back to drafting decisions that were easy to fix at the time. A 90-minute consultation with a succession lawyer catches almost all of these.
Summary
The biggest will mistakes are in the drafting, not the execution. A fixed-fee lawyer-drafted will typically costs less than a single hour of a contested-estate litigator's time. It's the best risk-adjusted estate planning decision families can make.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our wills service, or book a consultation.
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Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.