A Will is the document. Estate planning is the judgement behind it.

Estate planning is often treated as an exercise in preparing a Will, but the real work begins much earlier. This article considers how ownership and control structures, family businesses, trusts, superannuation and family expectations can affect succession planning. Drawing on recent Western Australian cases and experience in estate disputes, it explains why good estate planning requires advisers to identify foreseeable risks, ask difficult questions and understand the practical consequences of a client’s arrangements before the documents are prepared.

Estate planning is often spoken about as though the central task is preparing a Will.

The Will is important. But in many matters, it is not the most difficult part of the exercise.

The more difficult work happens before the documents are prepared. It involves understanding what a client owns, how those assets are held and controlled, who depends upon them, what expectations may already exist within the family and what is likely to happen if the client dies or loses capacity.

Two clients can have very similar balance sheets and require very different estate plans.

A client with three adult children, straightforward assets and no competing financial interests presents a very different planning exercise from a client with a family business, discretionary trusts, superannuation, children working in the business and a second marriage.

In the latter case, simply asking who should receive the assets is not enough.

The adviser also needs to ask who controls those assets now, who should control them in the future, whether the structures through which they are held will continue to operate effectively following death or incapacity, and whether the proposed arrangements reflect the practical realities of the family.

That is where judgement becomes important.

One of the most common misconceptions about estate planning is that the Will determines what happens to everything a person owns.

It does not.

Assets may be held through family trusts, companies, superannuation funds or jointly with another person. The succession of those assets may therefore depend upon trust deeds, company constitutions, shareholder arrangements, superannuation nominations and other documents operating alongside the Will.

The distinction between ownership and control can be particularly important.

In Dryandra Investments Pty Ltd v Hardie, the Supreme Court of Western Australia was required to intervene when the person holding the roles of appointor and guardian of a family trust lost capacity and could no longer exercise the powers attached to those positions. The trust documentation did not provide an effective solution to that circumstance, and the Court ultimately exercised its inherent jurisdiction to replace her.

The case is a useful reminder that succession planning is not simply about identifying who will ultimately benefit from wealth. It also requires consideration of who will have authority to manage and control the structures through which that wealth is held.

That issue is equally important in family businesses.

In King v Goolagar Pty Ltd, decided by the Supreme Court of Western Australia in August 2026, the Court was required to determine who had validly been appointed as a director of a family company before the death of one of its principal shareholders and directors. The deceased had been seriously ill before his death. There had been discussions and documentation concerning changes to the directorships of companies within the family group, but important documents relating to Goolagar had not been lodged with ASIC and signed copies could not later be located.

Following the death, competing positions were taken as to who controlled the company, with consequential changes then made across other companies within the family group. The Court ultimately found that the deceased’s wife had been validly appointed as a director before his death and that a later purported appointment of another director was ineffective.

The point is not that every private company requires an elaborate succession structure.

It is that asking “who inherits my shares?” may not answer the more immediate question: “who can make decisions for the company if I die or lose capacity?”

A good estate plan should consider both.

Some of the most difficult estate disputes do not begin with defective documents.

They begin with conversations.

This is particularly common in farming and family business succession, where arrangements develop over many years and family members may make significant life decisions based upon an understanding of what will eventually happen.

Wise v Wise is a useful Western Australian example.

The case concerned a family farm near Albany. A son and his wife alleged that his mother had promised that if they returned to manage the farm, he would ultimately inherit it. They said they made significant changes to their lives in reliance upon that promise. The mother’s final Will instead effectively divided her estate equally between her two children.

The claim ultimately failed because the Court was not satisfied that the alleged promise had been made.

That does not make the case any less instructive from an estate-planning perspective.

There was no written record of the alleged promise. Years later, after the relevant family members had died and relationships had deteriorated, the Court was required to examine competing recollections of conversations said to have occurred many years earlier. Whitby J observed the inherent difficulty of assessing evidence of what a deceased person may have said and the risk that memories can be reconstructed over time.

The judgment also records that there had been detailed family discussions about different ways the farm might ultimately be dealt with, including selling the farm and dividing the proceeds, transferring it to one child with the other receiving different assets, or fixing a value and requiring an equalisation payment.

The difficulty was not necessarily a lack of thought.

It was that the expectations and discussions had not produced a sufficiently clear and implemented succession arrangement.

That is an important distinction.

Estate planning does not require families to agree on everything. Nor does it mean that every difficult conversation must produce equal outcomes.

It does, however, require advisers to identify where expectations may exist, where those expectations may conflict with the client’s intentions and where leaving an issue unresolved may create significant uncertainty later.

Working in estate disputes inevitably changes the way you approach estate planning.

You see how apparently small decisions can become significant after somebody has died.

The appointment of two executors who are expected to work together may become problematic if their relationship later breaks down. A family trust may operate effectively for decades until the person holding a critical control role loses capacity. An informal assurance about a farm may be remembered differently by different family members. A company structure that worked perfectly while its founder was alive may become difficult to operate immediately after death.

None of this means that litigation can always be avoided.

Families change. Relationships change. Assets change. Clients are also entitled to make decisions that may disappoint other people.

The role of an estate planner is therefore not to promise a “dispute-proof” plan.

It is to identify foreseeable risks, explain the available choices and consequences, and help the client make informed decisions about those risks while they are still able to do so.

Sometimes that requires sophisticated structures.

Sometimes it requires simplifying structures that have become unnecessarily complicated.

Sometimes the most important part of the advice is identifying a conversation that the family has been avoiding.

This is also the approach I expect from the lawyers I work with.

Technical knowledge is essential in succession law. But it is the starting point, rather than the end point.

A lawyer needs to understand what a Will clause does. They also need to understand why it is being used, how it interacts with the client’s other structures and whether it is likely to achieve the client’s broader objectives.

That requires curiosity about the client’s circumstances, the confidence to ask difficult questions and the judgement to recognise when a technically available solution may not be the most appropriate one.

The quality of an estate plan should not be measured by the number or complexity of the documents produced.

It should be measured by whether the adviser understood the client’s circumstances, identified the issues that mattered and helped the client make considered decisions about what should happen when they are no longer able to make those decisions themselves.

The Will is the document.

The estate plan is the judgement behind it.