I’m not particularly handy when it comes to home maintenance,but there’s one thing I have learnt from the plethora of home renovation shows – when DIY projects go wrong, they go really wrong! The same can be said for DIY Wills.
I am regularly asked why people should see a lawyer to prepare a Will, rather than buying a Will kit from the post office or downloading an online Will template. In my experience,there are many things that can (and do) go wrong when people try to write their own Wills.Some of the problems that I have seen with home-made Wills include:
Will not signed and witnessed correctly
There are technical requirements about how a Will must be signed and witnessed.I have come across a number of Will kits that have been incorrectly signed,not witnessed properly,or witnessed by one of the beneficiaries. At best, this can involve
costly court applications to fix and, at worst,can result in the Will being invalid. A lawyer will ensure that your Will is legally signed and witnessed.
Dealing with non-estate assets
Not all assets are automatically dealt with by a Will. In some circumstances, superannuation and life insurance may pass directly to nominated beneficiaries, rather than via a Will. In addition,a Will may not necessarily deal with jointly owned assets or with business assets, such as assets held in a company or a trust. Many homemade Wills try unsuccessfully to give away non-estate assets, with the common result that the gift fails and the assets pass to an unintended recipient. A good estate planning lawyer will advise you on how non-estate assets will be dealt with on death and will take steps to ensure that all assets end up where you intend.
Misunderstanding the instructions
The law relating to Wills and estates is complex, with concepts that may seem overly technical to the lay person. The instructions in Will kits or online templates can be confusing to a person who is not familiar with making Wills, and often result in poorly drafted Wills. I have seen DIY Wills where the testator left out important clauses, such as: a clause revoking earlier Wills; a gift of residue, which resulted in part of the estate passing on intestacy; and gift over clauses so that the Will did not cover the event of a beneficiary dying before the testator. These kind of omissions can end in costly legal proceedings where the executor must ask the court for guidance if the interpretation of the Will is unclear. A lawyer will take the time to ask you about your wishes, including issues you may not have thought of, and draft a Will that is clear and covers a range of contingencies.
Will kits and online templates are unable to provide you with quality advice. Even if you end up with a Will that is validly signed and legally effective, there is no guarantee that the strategy is suitable for your circumstances. If your affairs are complex – such as if you have a blended family, own a business or have beneficiaries who are disabled – then it is important to obtain expert legal advice.
By having your Will prepared by a lawyer who specialises in estate planning, you end up with more than just a piece of paper. The expert legal advice that goes into creating your Will is just as important as the Will itself. You enjoy the peace of mind that your Will is legally valid and that it is part of an estate planning strategy that is suitable in your circumstances. DDCS Lawyers can provide you with specialist advice regarding your Will and estate planning.
Rebecca Tetlow is the only Accredited Specialist in Wills and Estates Law (NSW) in the Canberra region and is a Senior Associate at the firm.
phone (02) 6212 7600