DIY Will Kits - are the savings worth the risk?

While DIY Will Kits may be cheaper than engaging a qualified lawyer to prepare your Will, as with many things in life, when it comes to DIY Will Kits “you get what you pay for.

Your Will is one of the most important legal documents you will ever sign, and the terms of your Will can have financially life changing implications for your loved ones following your death. The costs associated with attempting to rectify the circumstances arising from an incorrectly drafted Will following the Will-maker’s death far exceed the cost of engaging a lawyer to prepare a Will correctly in the first instance. In certain circumstances rectifications may not even be possible, potentially causing beneficiaries to miss out on their intended gifts.

Some of the most common mistakes made with DIY Will Kits include the following:

The Will is not correctly signed and/or witnessed

There are formal legislative requirements in place which dictate how a Will must be signed and witnessed in order for the document to be valid and binding. If these requirements are not complied with issues will arise when attempting to administer the Will-maker’s estate.

While the Court may elect to dispense with the formal requirements for execution/witnessing in certain circumstances, making such an application can be a costly exercise and there is no guarantee that the application will be successful.

If a Will is found to be invalid, then a deceased person’s prior Will (if they have one) or the laws of intestacy (if there is no prior Will) will instead dictate what happens to the Will-maker’s estate. The rules of intestacy may not reflect the Will-maker’s final wishes from an estate planning perspective.

Even if a Will technically complies with the formal requirements, other mistakes can occur which could lead to disastrous consequences. For example, if a beneficiary (or their spouse) acts as a witness, this could potentially invalidate all gifts made to that beneficiary under the Will, causing them to miss out on their inheritance completely.

Failing to adequately store the Will

If a Will cannot be located and the Will was last known to be in the Will-maker’s possession, there is a general presumption that the Will-maker has destroyed the original Will with the intention of revoking it. In certain circumstances it may be possible to obtain a Grant of Probate based on a copy of a Will, but this can be a costly and drawn-out process and there is no guarantee of success.

In an attempt to try to ensure that a Will is kept somewhere safe, Will-makers have been known to sometimes store original Wills in bank safety deposit boxes. Unfortunately, the storage of original Wills in bank safety deposit boxes can actually cause a whole host of problems for an executor (if they are not a joint owner or a co-signer of the safety deposit box) when trying to gain access to the original Will once the Will-maker has passed away. Issues with gaining access to Wills stored in safety deposit boxes can be exacerbated further when a person’s loved ones don’t know who has been appointed as executor.

When a Will is prepared by a law firm, the original Will is usually stored in the law firm’s safe custody facility at no cost. Law firms will often also monitor local death notices and will reach out to executors to notify them that they hold a Will in their safe custody facility on behalf of the deceased.

Failed gifts and/or gifts to the wrong people

It is quite common for Will-makers who utilise DIY Will Kits to try and give away assets that they do not own in their personal capacity (such as trust or company assets), or assets that will not form part of their estate (such as property held as joint tenants with another person). Another mistake that often occurs when proper legal advice is not obtained, is the inclusion of instructions in a Will regarding how superannuation is to be dealt with, without the Will-maker carrying out the necessary steps to ensure that their superannuation and associated death benefits are actually going to form part of their estate.

When a Will is poorly worded or contains contradictory and/or uncertain provisions, it may be impossible to properly determine the Will-maker’s intentions. This could cause unclear provisions to be rendered invalid, resulting in specific gifts failing. In other circumstances poorly worded clauses and/or the inclusion of legal phrases or wording that the Will-maker does not fully understand the legal meaning of, may be interpreted by the court in a way which differs from what the Will-maker’s actual intention was.

If a beneficiary fails to survive, anti-lapse rules (as set out by the relevant legislation) could apply, which will dictate what happens to the gift. The operation of the anti-lapse rules may go against what a Will-maker’s intentions would be if a particular beneficiary fails to survive. This highlights the importance of excluding the operation of the anti-lapse rules (whether this be to the entire Will or just to specific gifts) where necessary.

Where a proper residuary clause is not included in a Will or proper consideration is not given to the inclusion of back up residuary beneficiaries, there may be a partial and/or complete intestacy of the Will-maker’s estate. When property is not adequately dealt with under a Will, the laws of intestacy (which are set out in legislation) will dictate what happens to such assets. These provisions may not be consistent with a Will-maker’s intentions.

When obtaining instructions to prepare a Will, a lawyer will ask the necessary questions and conduct the relevant searches (if required) to ascertain how a client’s assets are held, to ensure that a client’s wishes under their Will can actually be carried out. In order to ensure that a Will is comprehensive enough for a Will-maker’s intentions to be met a lawyer will ask their client about their wishes for the distribution of their estate in a whole host of different scenarios that could foreseeably occur. A lawyer will also take into consideration not only the impact that relevant legislation may have on a Will, but also relevant case law which shows how the courts have chosen to interpret certain words and phrases in the past.

Failure to properly account for the Will-maker’s personal circumstances

A Will-maker’s specific life circumstances may be complex, and a simple Will will not be appropriate for everyone. Additional steps may be required to be undertaken to ensure that a Will-maker’s wishes can be carried out.

Examples of circumstances which usually require additional legal advice and/or further consideration when preparing an estate plan include the following:

• Complex asset structures
• Business succession planning
• Farm succession planning
• Assessing whether or not further steps are required to dictate what happens to superannuation entitlements
• Blended family situations
• Concerns about vulnerable beneficiaries
• Issues regarding capacity
• Leaving certain people out of the Will, and the associated potential risk of family provision claims
• Concerns about a potential family provision claim being made against an estate when unequal gifts are made to people who are eligible to bring family provision claims

We can assist you

An experienced estate planning lawyer will not only draft a Will that is legally binding and reflects a Will-maker’s intentions, but also that contemplates family and personal considerations and the manner in which the Will-maker’s assets are held. The skill and experience of a knowledgeable estate planning lawyer, particularly in dealing with estate planning involving complex structures and/or family relationships, is invaluable. Please do not hesitate to contact one of our estate planning solicitors on (07) 4963 2000 or via the link below if you require assistance with preparing your Will.