‘The Boxing Day epiphany’

Mary-Ann de Mestre, principal of Sydney law firm M de Mestre Lawyers, is a lecturer in succession law at Macquarie University.

“Every year, there’s a kind of ‘post-Christmas will rush’,” de Mestre said of requests for advice.

“People call it the Boxing Day epiphany. Suddenly, after the relatives leave, the credit card bills arrive, and someone inevitably cracks a joke about who’s getting what in the family, people realise it’s probably a good time to finally sort out their affairs.”

Even without a summertime surge in inquiries, experts predict 2026 will be another busy year for disputes about wills and inheritances. These are some of the key lessons from court fights this year.

DIY and ‘iPhone wills’

Informal wills – which don’t meet formal requirements relating to signatures and witnesses – are legally fraught.

This year, the state’s top court, the NSW Court of Appeal, found a note on an iPhone and an unsigned document attached to an email were legally valid as the final, informal wills of wealthy Sydneysiders. The Supreme Court found a journal note was also valid.

But lawyers warn that informal wills can leave family members with a large legal bill because it may be difficult to prove the deceased intended it to operate as their final will. This is necessary for the courts to dispense with formal requirements.

WHAT IS A VALID WILL?Under NSW law, a will is not valid unless it is in writing and signed by the will-maker, or another person in their presence and at their direction. That signature must be made, or acknowledged by the will-maker, in the presence of at least two witnesses.At least two of those witnesses must also attest and sign the will in the will-maker’s presence.However, a court may dispense with the formal requirements for making a will. An informal document is “the deceased person’s will … if the court is satisfied that the person intended it to form his or her will”. 

Corbould said that “a good number of wealthy people” were still using inexpensive DIY will kits or making an informal will, such as a note on their phone. Both were risky.

“People just don’t like doing paperwork,” he said.

People might baulk at paying several hundred dollars for a lawyer to draft a “simple will”, Corbould said, but it could save family members thousands in the future.

De Mestre said that “between iPhone notes, WhatsApp messages, and Google Docs, people are increasingly treating their devices as the ultimate repository of their intentions”.

Tech-savvy people might see informal wills as a “pragmatic shortcut”, she said, but it came with legal risk because they were “vulnerable to attack”.

No will? There’s a way

Moloney said there is no legal requirement to make a will. State-based laws deal with the division of an estate where a person dies without a will. Primacy is given to spouses, or any children in the absence of a spouse.

“Remember: if you do nothing at all, the law will presume you were content with the operation of the laws of intestacy [where a person dies without a will], which you may not want,” Moloney said.

He warned that surviving relatives, if any, would also “have to sort out who applies for a grant of letters of administration [allowing a person to administer the estate], which will take longer”.

Family provision claims

All three experts predicted there would be an increase in people seeking family provision orders, which is a way for current or former dependants of a deceased, among others, to seek a larger slice of the inheritance pie if inadequate provision was made for them in a will. The court makes such orders only on a needs basis.

The number of family provision filings in the NSW Supreme Court increased from 880 in 2020 to 996 last year.

De Mestre said that “these trends show contested estate litigation is not static. Filings remain high, reflecting broader socio-economic pressures, complex family structures, and higher estate values.”

Corbould said an increase in claims by de facto partners was likely. Family provision claims may be made by people who were previously a “member of the household” of the deceased and dependent on them.

“Be aware if you let someone into your home for any duration or regularity, they could later call themselves a ‘member of the household’ and previously dependent – even if you may not have thought so,” Corbould said.

He said the rise in blended families, which increased the pool of people eligible for family provision orders, would also lead to more claims, as would the deaths of more Baby Boomers.

Estates that included an unencumbered home in Sydney virtually guaranteed the estate was worth more than $2 million, Corbould said.

Costs

Litigating over an inheritance can prove costly. In one case, a Sydney woman who received more than $450,000 of her late father’s $3 million estate launched proceedings to increase her slice of the assets.

She lost, and was ordered to pay the bulk of the executor’s legal costs of defending the case out of her existing share.

De Mestre said the “courts are signalling that family provision claims are no longer free passes into estates”.

Moloney said that “the prospect of an adverse cost is something all family provision litigants must squarely contemplate before commencing proceedings”.

“The courts have been clear for some time now that to run a bad or speculative claim on the assumption you get a free kick on costs is erroneous.”

Variations on a theme

Moloney said that “after several years of case-watching, the issues remain similar, or recur with variations”.

The decisions provided “endless lessons about human nature; greed; the futility in basing your life around an expectation of inheritance; the financial pressures compounding on the young; medical advances helping the bodies of the old stay alive whilst their minds grow enfeebled; and people lusting after an inheritance windfall”.

“I consider the psychology involved similar to gambling – the lure of unearned wealth,” Moloney said.

He said a good rule of thumb was to “conduct your life on the assumption you will inherit nothing”.

“That way you can only be pleasantly surprised if you receive something at all – and it was never ‘your’ money to begin with.

“The only lessons to be learnt are to make a will with a good solicitor [and] do not disclose its contents unless you feel it absolutely safe or uncontroversial to do so. My usual advice is not to reveal anything anyway.”

Suspicious wills

Wills made in suspicious circumstances were also examined in court this year, including a case involving a carer being written into an elderly man’s will in ever-increasing shares.

“When it comes to regulating the circumstances in which suspicious wills are made, the law is very good at being reactive and very bad at being proactive,” Moloney said.

“If you smell a rat in your family regarding a will being cooked up in suspicious circumstances, it can be very hard to stop, and very expensive to ‘make right’ after death.”

He said key issues for family members to consider would include: “Did the will maker have capacity to do what they did; am I just disappointed [with my inheritance]; if I’m a spouse or child, do I have real financial need that would move a court to do something different; and do I have the money and stomach for a long fight.”

‘Don’t wait for a family argument’

De Mestre said that “ideally, you don’t want to wait for a family argument, a health scare, or a New Year’s hangover to think about your estate”.

“Getting advice early is like putting the smoke alarms in before the fire starts: it’s a lot less stressful, more thoughtful, and it gives you time to plan creatively.

“Plus, it’s one of the few New Year’s resolutions you can actually finish in an hour and feel genuinely virtuous about.

“Ultimately, taking the time to get professional advice ensures your wishes are legally protected and can help prevent costly disputes for your loved ones later.”