Many Australians put off making or updating a will because they believe things they have heard from friends, family or the internet. The problem is that assumptions about inheritance law in New South Wales are often wrong – and acting on them can leave your loved ones dealing with stress, delays and disputes at an already difficult time. Here are five of the most common will myths, and the reality behind each one.
Myth 1: My Family Knows What I Want – They Will Sort It Out
Many people believe that their wishes are well understood by the people closest to them and that there is no need to write anything down formally. In practice, even the most harmonious families can find themselves in disagreement when money and property are involved. Without a legally valid will, there is no binding record of your intentions, and the people you trust most have no legal authority to simply divide things up the way you would have wanted.
When a person dies without a valid will in NSW, they die intestate. Their estate is then distributed according to a statutory formula under the Succession Act 2006, which may bear no resemblance at all to what they would have chosen. The process is also slower and more expensive, and family members who expected to receive something may find they have limited legal entitlement.
Myth 2: My Partner Automatically Gets Everything When I Die
This is one of the most common and most damaging assumptions in estate planning. The law in NSW does not simply hand everything to a surviving spouse or de facto partner in all circumstances. Where there are children from a previous relationship, for example, the intestacy rules split the estate between the surviving partner and those children – often in proportions that surprise everyone involved.
Even where a couple has been together for decades and genuinely intends for the survivor to inherit everything, without a valid will that clearly says so, there is no guarantee it will happen. A well-drafted will removes the ambiguity entirely and can also address what happens to particular assets – the family home, superannuation, business interests – in a way the intestacy rules simply cannot.
Myth 3: I Am Too Young or Do Not Own Enough to Bother With a Will
Estate planning is not just for the elderly or the wealthy. A young adult with a superannuation account, a car and a few thousand dollars in savings still has assets that need to go somewhere. If they also have a partner, a child or a parent who depends on them financially, the stakes are even higher.
Superannuation in particular is often misunderstood. It does not automatically form part of your estate and cannot be directed by your will unless the trustee exercises discretion in that direction. A binding death benefit nomination is a separate document that needs to be made and reviewed regularly. Without one, the fund trustee decides who receives what – and their decision may not align with your intentions.
Myth 4: An Online Template Is Just as Good as Legal Advice
DIY will kits and online templates can seem appealing – they are fast, cheap and give people the feeling they have dealt with the issue. The problem is that wills have strict formal requirements in NSW, and a document that does not meet those requirements can be invalid. A will that is not properly signed, witnessed or worded can leave your estate in exactly the same position as if you had no will at all.
Beyond the technical requirements, generic templates cannot account for your specific circumstances – blended families, business interests, overseas assets, properties held in trust, or beneficiaries with special needs or financial vulnerabilities. A solicitor can identify these issues, ask the right questions and draft a document that actually reflects your situation and holds up to scrutiny.
Myth 5: Once I Have a Will, I Never Need to Change It
A will written years ago may no longer reflect your life as it is now. Life changes constantly, and your estate plan should change with it. Key events that typically warrant a review include:
- Getting married or entering a de facto relationship (marriage automatically revokes a will made before it in NSW unless the will was made in contemplation of that marriage).
- Separating or divorcing from a partner.
- Having children or grandchildren, or taking on a step-parenting role.
- Buying or selling major assets such as property or a business.
- The death of a named executor or beneficiary.
Even without major life events, it is worth reviewing your will every three to five years to ensure it still reflects your wishes, your assets and the people in your life.
Speak to McDonnell Schroder About Getting Your Will Right
If any of these myths sound familiar, now is a good time to get proper advice about your estate planning. McDonnell Schroder can prepare a clear, legally sound will tailored to your circumstances – protecting your family, reducing the risk of disputes and making sure your wishes are actually carried out.
Call us today on (02) 9622 1155 or fill out our online form for a free consultation. We’re here to guide you every step of the way.
