By Kaela Dore :: Websters Lawyers
Six Reasons Why Your DIY Will Might Become A DIY Disaster
Although having a valid will is one of those important grown-up things, it can be difficult to find the time to get around to making one. Because it’s hard for most of us to imagine not being around any more, often this is one task that is constantly relegated to the bottom of our to-do lists.
Anyway, its’ such an inconvenience – you have to find a lawyer, make time to see them, see them again to sign the will and then there’s the expense. Using a will kit to make a do-it-yourself will seems a total no-brainer. You can do it in your own time, when it’s convenient, and it’s so much cheaper.
But before you go down the DIY path, there’s some things you should know.
The importance of having a will
A will is evidence of your intentions – it’s proof of your wishes to divide up your assets and belongings (your estate) in a particular way. We’ve written before about the reasons why having a valid will is important. For example:
:: Deciding who gets what from your estate.
:: Being clear about guardians for your children.
:: Ensuring that you have an executor who is able to locate all of your assets and debts and who can distribute and finalise your estate.
:: Ensuring the quick and easy settlement of your estate.
But it’s also critically important that the will is drafted and executed in accordance with legal requirements and often this is where DIY wills fail.
Here are our top six reasons why a DIY will might not work out in the long run.
1. Wills are complicated documents
It’s a complicated and technical process to draft and execute a will, even for wills that are fairly simple and straightforward. There are specific requirements about:
:: The wording used in the body of the will.
:: The wording that is used when the will is signed and witnessed.
:: How the will is signed and witnessed.
There are also other hidden issues, such as whether any provisions in your will may lead to legal action later on. For example, if you decide to leave all of your estate to your first child but nothing at all to your second child, the second child may later take legal action to claim a share of your estate.
Most people don’t get legal advice before making and signing a DIY will. After all, that would defeat the purpose of saving money on legal fees. As a result, DIY wills can magnify these issues.
In one recent case, a man (the testator) had made a DIY will. He had appointed an executor, but on the pro forma will document, he needed to cross out two of the words “he/she/they” that didn’t apply to his situation. To cut a long story short, after he had died, probate was refused because the Court couldn’t be sure of his intentions. (Probate is the process of proving the will – when probate is granted the Court says that the will is valid and that the executor can distribute the estate to the beneficiaries.)
In this case, even though no one was contesting the estate, probate couldn’t be granted and so there had to be a Court case to work out how to interpret the will. One tiny oversight led to thousands of dollars spent in legal fees and court action, which would have been deducted from the estate. This would ultimately mean that there would be less for the beneficiaries to inherit. There was also the delay in distributing the estate and the stress and inconvenience for everyone involved.
The testator, when making his will, was probably quite happy that he’d spent $30 on a will kit rather than $300 on a lawyer to draft his will. But the huge costs after his death bring all of this into perspective. A few hundred dollars really isn’t that much to spend if it means that your loved ones will be spared similar problems.
Some of the most common issues we see when it comes to deceased estates are those caused by DIY wills. That’s a really sobering thought.
2. The more complicated the will…
The more complicated the will, the less appropriate it will be to make a DIY will. You may want to set up a testamentary trust to take advantage of favourable tax breaks. You may want to give items of jewellery to many different people. You may own a number of homes and you want them distributed in a particular way.
Whatever the reason, any complicating factor makes it less likely that the pro forma will document will accommodate your needs. Remember that there will only be limited space for you to fill out your personal details and wishes.
DIY wills often don’t allow for other issues such as superannuation and taxation. Also, a DIY will kit usually won’t provide advice about what is included in your estate and what isn’t. For example, joint assets, family trusts, superannuation benefits. It’s essential to get legal advice about these things before making a will.
3. Care for kids
If you have dependent children, a DIY will may not allow you to specify how you’d like them to be cared for after your death. When it comes to blended families, the issues are even more complicated. It can be a very difficult process to work out what is a fair inheritance for each child.
If you can’t strike a balance that is reasonable, there is an increased risk of a claim being made against your estate, usually by someone who believes they are entitled to more than is provided for by the will.
Most will kits don’t provide advice about potential inheritance claims and what you might to do avoid them.
4. Gifts
In wills, gifts are specific items that you want someone to have, for example, leaving your engagement ring to your daughter.
Whilst many will kits allow for gifts to be made, they may not emphasise how important it is to properly describe the gift and the person to whom the gift is made, and the consequences for not doing so. If it is difficult to work out your intentions, the gift may fail and it will become a portion of the estate that is considered intestate (see below for a discussion on intestacy).
5. Signing the will
Signing a will may seem like a really basic part of the process, but if it’s not done properly the entire will can be invalid. It’s surprising how often this problem arises.
The will must be signed, dated and witnessed using precise language and procedure because it must be very clear that the testator knew the contents of the document before signing, and that they signed it freely.
Some DIY will kits don’t give adequate instructions about this and may not even provide enough space for the witnesses to sign.
6. Errors may lead to intestacy
Sometimes, the problems with a DIY can be so significant that nothing can be done to save the will. If this happens, the Court will declare that:
:: The will is invalid; and
:: The testator has died intestate.
“Intestate” means without a will.
The law dictates who can apply to be an administrator of the intestate estate. (An administrator deals with the estate in a similar way to an executor, except that there is no will to guide them).
If no administrator is appointed, the Court can appoint the Public Trustee to administrate the estate. This can mean that the testator’s loved ones may not get a say about how the estate is distributed and may not inherit anything. The Public Trustee will also charge a fee, which is paid from the estate. This means that there is less for the beneficiaries to inherit.
Choice Magazine review
Choice Magazine is an important informer and protector of consumer rights in Australia. In 2016, it published its review of DIY will kits. It identified some other key problems, including:
:: Basic and confusing instructions.
:: Taxation and other important issues weren’t mentioned.
:: Not enough space for witnesses to sign as required, possibly meaning that the will would be invalid.
:: Wrong information about who may challenge a will.
:: Poor instructions about when to seek legal advice.
It also said that many will kits are available throughout Australia, yet each State has its own laws for making wills. This may mean that some aspects of DIY wills are inappropriate for South Australians.
When money is tight, it’s only natural that we look for ways to save. We may try to use less electricity, cut down on takeaway lattes or decide to make a DIY will to avoid paying legal fees.
But some things just aren’t worth skimping. Making a DIY will is fraught with difficulty and complication. Even if the will is straightforward, if it’s not made properly it may be invalid, or legal action may be necessary to sort out the mess.
The great news is that we can help, even if you’ve already made a DIY will. Websters Lawyers has a team of outstanding wills and estates lawyers who have excellent experience in this area. Contact us today for a free first interview.
This article provides general information only. For advice specific to your needs, you should consult a lawyer.
:: Sponsored ::
