Failure Cases and Official Sources
Why homemade wills fail: will kit, handwritten and phone-note failure cases in Australia
Illustrative failure cases with will kits, handwritten wills, unsigned drafts and phone notes in Australia, what the court can save under the dispensing power, and what it costs.
Homemade wills fail in Australia for a small number of repeated reasons: the signing and witnessing rules were not followed, the wording is ambiguous, gifts fail because an asset was sold or a beneficiary died first, there is no residuary clause, or the will ignores assets that pass outside it. A court can often rescue a badly signed document under the state's dispensing power (for example section 8 of the Succession Act 2006 (NSW) or section 9 of the Wills Act 1997 (Vic)), and can sometimes rectify a clerical error, but each rescue needs an application, evidence and legal costs that are normally paid from the estate. The cases below are illustrative composites showing how each failure plays out and how it could have been avoided.
General information only. If you are relying on an informal will, get legal advice before applying for a grant.
Failure case 1: one witness
Facts: Carol completes a will kit at her kitchen table in Newcastle. Her neighbour signs as witness. Nobody else is present.
Problem: a formal NSW will needs two witnesses present at the same time. The will is not formally valid.
What happens: the executor applies for probate relying on section 8. The court must be satisfied Carol intended the document to be her will. With the neighbour's affidavit and the kit's clear terms, the application succeeds, but takes extra time and legal costs.
Prevention: two adult, independent witnesses, both watching Carol sign, then signing themselves.
Failure case 2: a beneficiary as witness
Facts: Tony's will leaves his boat to his friend Mark. Mark and Mark's wife witness the will.
Problem: gifts to witnesses (and, in some states, their partners) are at risk. The details depend on the state's Act and its exceptions.
What happens: the gift may be void unless an exception applies, such as other independent witnesses being present or the other beneficiaries consenting, or the court being satisfied Tony knew and approved of it. Mark may need to bring evidence.
Prevention: never let a beneficiary or their partner witness.
Failure case 3: no residuary clause
Facts: Hana's handwritten will gives her house to her daughter and her car to her son. She later receives a $200,000 inheritance and puts it in a term deposit.
Problem: the will says nothing about the remainder of the estate. The $200,000 is undisposed of.
What happens: the term deposit passes on partial intestacy under the state's rules. If Hana had a husband, he may receive it; if not, her children share it equally. That may or may not match her wishes.
Prevention: always include a clause saying who receives the rest of the estate.
Failure case 4: an asset that no longer exists
Facts: Bill's will gives "my house at 12 Banksia St" to his son and "the residue" to his daughter. Bill sells the house and moves into aged care, putting the proceeds in a bank account.
Problem: the gift of the house adeems (fails) because Bill no longer owns it at death. The money falls into the residue, so the daughter takes almost everything.
What happens: the son may have a family provision claim. Some states have specific rules where an attorney sold the asset during incapacity, but the outcome is uncertain.
Prevention: review the will when major assets are sold, and use gifts of shares or percentages rather than named assets where appropriate.
Failure case 5: an unsigned draft on a laptop
Facts: Yusuf emails his solicitor a typed list of wishes and asks for a will to be prepared. He dies before signing.
Problem: the court must be satisfied he intended the document itself to be his will. A document sent with a request to "prepare a will" usually shows he expected a formal will to follow.
What happens: the dispensing power application is likely to fail, and the estate passes under his earlier will or intestacy.
Prevention: sign the final will promptly, especially when unwell. Solicitors can arrange urgent bedside signings.
Failure case 6: a note on a phone
Facts: Before taking his own life, Daniel types an unsent note on his phone that names his brother as executor and leaves his house to his brother, ending with his initials.
Problem: no formal will.
What happens: Australian courts have accepted electronic notes and unsent messages as informal wills where the evidence showed the person intended the document to operate as their will. Others have been refused. The outcome depends on the evidence, and the application is costly and distressing for family.
Prevention: make a formal will.
Failure case 7: forgetting assets outside the will
Facts: Pam's will divides "my estate" equally between her three children. Her home is owned as joint tenants with her second husband, her super ($450,000) has a binding nomination to him, and she has $60,000 in her own bank account.
Problem: the home passes to her husband by survivorship and the super under the nomination. Her "estate" is only $60,000.
What happens: each child receives $20,000. They may consider a family provision claim, and in NSW could ask for the home or super to be treated as notional estate.
Prevention: match the will with how assets are owned. See the asset table in the estate planning checklist.
What a rescue costs
| Rescue | What is needed | Illustrative cost and delay |
|---|---|---|
| Informal will accepted (unopposed) | Affidavits from people who saw the document made, evidence of intention | Several thousand dollars of legal costs; months of delay |
| Informal will opposed | Contested hearing | Tens of thousands of dollars or more; a year or longer |
| Rectification of a clerical error | Application usually within a time limit after the grant or death | Several thousand dollars |
| Construction of an ambiguous gift | Application for the court's interpretation | Varies; can be substantial |
These are illustrative ranges, not quotes. The real figure depends on the estate, the evidence and whether anyone contests.
When a kit is reasonable
A will kit can work where your affairs are simple, all assets are in your name, your beneficiaries are clear, and you follow the signing rules exactly. Get advice if you have a blended family, children under 18, a beneficiary with a disability, a business, a family trust, overseas assets, or someone who may contest the will. See valid will requirements and the estate mistakes overview.
FAQ
Is a handwritten will valid?
Yes, if it meets the formal rules: signed by you and witnessed by two people present at the same time. An unwitnessed handwritten will may be accepted under the dispensing power.
Can I fix a mistake by writing on my will?
Alterations need to be signed and witnessed. Making a new will is usually safer.
Who pays for a dispensing power application?
The estate usually bears the costs, but the court decides, and a party who unsuccessfully opposes may pay.
Sources
- NSW Legislation — Succession Act 2006, ss 6, 8 and 27 (rectification)
- Victorian Legislation — Wills Act 1997, ss 7 and 9
- Queensland Legislation — Succession Act 1981, ss 10, 11, 18 and 33
- Supreme Court of NSW — informal wills and probate
- Related: free legal help, intestacy rules
