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Drafting Wills Without Lawyers: A Risk You Can’t Insure
Our Wills and Estate team discuss this important topic.
In the age of online templates and budget Will-writing services, many Australians are tempted to treat estate planning as a quick “tick-and-forget” exercise without proper legal advice. However, the recent Supreme Court decision in Di Trapani & another v Di Trapani & others [2026] QSC 20 (Di Trapani) is a timely reminder that what looks simple on the surface can quickly become anything but.
A Case Study in What Can Go Wrong
In Di Trapani, the Will was not prepared by a lawyer, but by an accountant. On its face, this may not seem problematic as accountants are trusted advisers. However, estate planning is a specialised legal discipline, and the consequences of stepping outside that expertise became evident.
The estate included personal assets, companies, and a discretionary family trust. The Will attempted to deal with all these structures but overlooked a key legal principle: a Will can only deal with assets personally owned by the testator.
This led to several issues, including failed gifts of trust property, ineffective attempts to direct company affairs, and unclear wording that required court interpretation.
What followed was predictable but avoidable – multiple parties, competing interpretations, and ultimately, costly litigation to resolve the uncertainty.
You Cannot Give What You Do Not Own
One of the most common and fundamental errors in non-lawyer drafted Wills is the assumption that control equals ownership.
In practice, many individuals operate within structures such as family trusts, companies, and other asset-holding entities for legitimate tax planning and asset protection purposes. Accordingly, a Will, by itself, does not control:
- Trust assets (which are governed by the trust deed);
- Company assets (which belong to the company, not the individual); or
- Loan accounts or inter-entity obligations without proper structuring.
Failing to recognise this distinction can render key provisions of a Will ineffective, as seen in Di Trapani.
The Hidden Risk: No Insurance, No Safety Net
In contrast to qualified legal practitioners, who are required to maintain insurance as a safeguard for clients and estates in the event of negligence, non-lawyer Will drafting typically offers no such protection. This creates a significant gap in accountability and risk management.
In practical terms, this means the estate (and ultimately the beneficiaries) may be left to pursue a personal claim against the individual who prepared the Will – an exercise that is often commercially futile.
Implications for Online Will Platforms
The rise of digital Will-writing platforms has made estate planning more accessible. While these platforms may have a place in very simple scenarios, their limitations must be clearly understood.
In particular, they are generally unsuitable for estates involving:
- Family trusts or corporate structures;
- Blended families or competing beneficiary interests;
- Business assets or complex financial arrangements; or
- Any situation requiring tailored legal advice.
The concern is not the existence of such platforms, but rather their use outside the narrow scope for which they are designed. In the absence of tailored legal input, there is a real risk that users may unintentionally produce documents that are legally ineffective, ambiguous, or vulnerable to challenge.
The ‘Do It Yourself’ Will and its implications
Having said that, Australian law does not require a solicitor to draft a valid Will. An individual may prepare their own Will by hand, purchase a Will kit or complete an online template.
There are limited circumstances where a simple DIY Will might be adequate:
- The estate is modest and uncomplicated;
- There is a single intended beneficiary with a clear substitute in the event of predeceasing;
- There are no children, blended family dynamics, or competing familial relationships; or
- The Will is intended as a temporary measure in urgent circumstances, with the expectation of later professional revision.
However, even in seemingly simple arrangements, informal drafting frequently gives rise to unintended legal complexity. Non-professional Wills are particularly vulnerable to imprecise language, internal inconsistency, and ambiguity as to testamentary intention, all of which can ultimately lead to dispute.
This risk is illustrated in Barnes v Pope in his capacity as administrator of the Estate of Lynette Margaret Hough [2023] NSWSC 685. In that matter, a Will prepared without legal assistance contained wording that left genuine uncertainty as to whether the testator intended to grant his wife and close friend an outright beneficial interest in the property, or merely a right of occupation.
The Supreme Court of New South Wales was ultimately required to construe the Will, with the matter involving substantial legal argument and representation, an outcome that could potentially have been avoided with clearer drafting at the outset.
Conclusion
Di Trapani and Barnes teaches us a simple lesson. When it comes to Wills, the cost of getting it wrong is far greater than the cost of getting it right.
For individuals, families, and organisations recommending Will-writing services, this case serves as a reminder to carefully consider not just accessibility and price, but accuracy, accountability, and protection.
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*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.