Five Things Your Will Must Do (But Probably Doesn't)

1. Clearly Identify Your Executor and Empower Them Properly

Your executor is the person responsible for administering your estate – collecting assets, paying debts, dealing with superannuation funds, managing tax obligations, and ultimately distributing the estate to your beneficiaries. A will that simply names an executor without conferring adequate powers can leave that person unable to act efficiently, particularly where the estate includes a business, real property that needs to be managed, or complex financial assets. A properly drafted will grants the executor broad powers to invest, sell, and deal with estate assets without needing to seek court approval at every turn. It should also nominate a substitute executor in case your primary choice is unable or unwilling to act.

2. Address Superannuation Strategically

This is perhaps the most common gap in Australian estate plans. Superannuation does not automatically form part of your estate – it is a trust asset held by your superannuation fund, and the trustee of that fund has discretion over who receives your death benefit unless you have made a valid binding death benefit nomination (BDBN). A will cannot direct where your superannuation goes. If you want certainty, you need a current, valid BDBN naming your preferred beneficiaries or your legal personal representative. BDBNs typically lapse after three years and must be renewed, and the eligible recipient categories are defined by superannuation law, not by you. Many clients are surprised to learn that their will has no effect over what is often their largest asset.

3. Account for Blended Family Complexity

If you have children from a previous relationship, a current partner, and stepchildren, a simple "everything to my spouse" will is potentially a disaster waiting to happen. Upon your death, your spouse becomes the sole owner of the estate. If your spouse later remarries, has further children, or simply drifts apart from your children, there is nothing in law preventing them from leaving your assets entirely to someone else. A testamentary trust – a trust established under your will that comes into effect on your death – can provide for your current partner during their lifetime while preserving the capital for your children. This kind of structure requires careful drafting and should be considered by anyone in a blended family situation.

4. Protect Vulnerable Beneficiaries

If you intend to leave assets to a beneficiary who has a disability, struggles with addiction, is in an unstable relationship, or is likely to be a target for creditors or the Family Court, a direct gift under your will may do them more harm than good. A testamentary trust allows you to appoint a trustee to manage assets on behalf of that beneficiary, provide income in a tax-effective manner, and protect the capital from external claims. For beneficiaries who receive disability support payments, a special disability trust may be appropriate. These are nuanced decisions that benefit greatly from legal advice.

5. Anticipate Family Provision Claims

Under the Inheritance (Family Provision) Act 1972 (SA), certain categories of "eligible persons" – including children, spouses, and in some circumstances other dependants – can apply to the Supreme Court for provision from your estate if they believe your will (or intestacy) has not made adequate provision for their proper maintenance, education, or advancement in life. You cannot completely will-proof your estate against such claims, but a well-considered will that includes a statement of testamentary intentions, documents the nature of your relationships with potential claimants, and makes considered provision for those with legitimate needs is in a far stronger position than one that simply ignores the issue. Your solicitor can help you understand who might have standing to claim and how to structure your gifts accordingly.