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Why Your Simple Will Might Not Be So Simple After All
Managing Associate Kimi Shah and the Wills and Estate team discuss this important topic.
Many people assume their estate planning is straightforward – a home, a few savings, maybe some super in a superannuation fund – and that everything can simply pass to your spouse or children. Whilst the intention is clear, the reality is that Wills are rarely as simple as they appear. Even when your wishes are obvious, life and the law often introduce complexity.
Why People Underestimate Their Situation
A common misconception is that your Will simply lists who receives what. For example: “Everything to my partner, and if they die first, then to my children.” This sounds neat in theory, however, this overlooks important legal and practical considerations. A Will is not just about distributing assets, it is also about defining who manages your estate, who can inherit, what constitutes your estate, who may be unintentionally excluded, and how to handle unforeseen circumstances.
Without proper structure or advice, a seemingly ‘simple Will’ can create headaches for the very people you are trying to protect.
The Hidden Complexities in Every Estate
Even the most ordinary family or asset structure often have layers of complexity that are not immediately obvious.
- Family Dynamics
Families come in all shapes and sizes:
- Some families include children from previous relationships, step-children, blended households.
- Others involve estranged relatives who might believe they have been left out unfairly.
- Parents of young children must consider guardianship arrangements.
- It is also important to plan for what happens if a beneficiary dies before you.
These are not fun “what ifs,” but they are important ones. A Will that does not plan for them might not work the way you intended. Family relationships change over time, and your Will needs to be flexible enough to handle those changes.
- Asset Considerations
Not every asset you own is automatically covered by your Will.
- Superannuation does not automatically form part of your estate. It depends who you nominate with your super fund or who the superfund decides to pay to.
- Family trusts or company assets are not personally owned and need separate planning.
- Property ownership matters. Whether you hold a property as joint tenants or tenants in common affects who inherits your share.
- Digital assets such as online accounts, cryptocurrencies, or intellectual property rights are increasingly valuable and often overlooked.
- Overseas assets may be governed by foreign laws which can complicate administration.
What appears to be a straightforward list of assets often becomes a legal puzzle once ownership and control are examined closely.
- Tax and Financial Planning
A Will can also have significant tax consequences.
- When beneficiaries sell inherited property or shares, capital gains tax may apply.
- Establishing a testamentary trust can help protect assets for young beneficiaries or provide long-term tax benefits.
- It is also important to ensure the estate has enough liquidity – cash or readily available funds – to pay debts, taxes, and other expenses.
Without that foresight, your loved ones might be left sorting out tax outcomes or selling assets to pay bills.
The Legal Risks of Oversimplifying
Under the Family Provision Act 1972 (WA), certain family members – such as a spouse, children, or dependants – may contest a Will if they believe they have not been adequately provided for. A “simple” Will that fails to reflect complex family dynamics can easily be challenged, leading to costly and time-consuming disputes. Many people say if you leave a “nominal” amount, that person can’t challenge your Will. This is a common misconception.
There are also issues of capacity and undue influence. The law requires that the person making the Will understands what they are signing and is acting voluntarily. If these requirements are questioned later, the validity of the Will can be challenged.
Choosing the right executor is another critical decision. Executors have the responsibility of managing the estate, dealing with various institutions and third parties and with beneficiaries. They ensure compliance with legal obligations. Appointing the wrong person can lead to unnecessary complications.
What Proper Will Planning Really Involves
A good Will is not necessarily a long or complicated document. The key is that it is well considered.
Well considered means:
- Understanding your full asset picture (including super and trusts);
- Talking honestly about family dynamics and what could change;
- Thinking ahead to cover the “what ifs”;
- Making sure everything complies with WA’s legal requirements;
- Reviewing your Will every few years – or whenever life changes.
When a Will is properly prepared, it provides clarity, protection, and peace of mind. It spares your loved ones from confusion, conflict, and unnecessary legal costs at an already difficult time.
So rather than asking for a “simple” Will, think about security for your family, control over your legacy, and confidence that your wishes will be respected.
A thoughtful conversation with an experienced lawyer today can make all the difference tomorrow. Taking that step now is one of the most caring and practical gifts you can leave behind.
How can HHG Legal Group help?
*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.