Too often people looking to organise a Will might opt for a DIY Will kit as opposed to the expense of hiring a lawyer to assist. These kits are often cheap and will guide you through the basics.
The cost of these Will kits is very tempting, especially given how straightforward DIY Will kits seem. However, Wills are not necessarily as simple as these kits would have you believe.
In the past few years in Australia, there has been a rise in the number of applications to the Supreme Court for clarification and rectification – largely as a result of poorly filled out DIY kits.
Even the smallest omission or missed step can lead to a whole load of headaches for the family of the departed.
Common Difficulties With DIY Will Kits
There are various ways that an incomplete form can impact the estate litigation process. Below are some of the key examples of repercussions associated with a poorly completed DIY Will kit.
- The executor named on the will has passed away and no substitute executor has been named, in this circumstance their executor may become your executor;
- When a gift has been allotted to a beneficiary, but the nature of the gift has changed since at the time of death of the testator;
- Disputes may arise due to informal or vague language in the Will (although many aren’t comfortable with it, ‘legalese’ is a very accurate and unambiguous way of communicating important legal ideas);
- The document has not been signed, witnessed or both;
- The Will makes untenable conditions upon bequests;
- The testator has failed to dispose of their entire estate, the result is a partial intestacy;
- The testator making handwritten changes to without witnessing or dating the Will.
As you can see, there are a number of issues that require a keen eye and working understanding of Estate Law to complete properly with certainty.
Unfortunately for the testator and the beneficiaries, these mistakes can be quite expensive and unnecessary.
One Size Fits All DIY Will Kits
The rise of technology and the Internet has lead to a dramatic increase in DIY Will kits. Some Will kits are even available online for greater ease for as little as $31.50 AUD.
“We are seeing a rise in the work to unravel the issues with DIY wills following the increase of will kits and forms available online and through various outlets,” says chief executive of the NSW Trustee & Guardian (NSWTG), Imelda Dodds.
“Unfortunately this has meant NSWTG is required to sort out wills that are ambiguous, can be misinterpreted and therefore challenged, or are not valid and able to be executed.”
“We actively encourage all adults to make provision for their future. We also say it is very important to take professional advice,” says Dodds.
One Estate planning specialist, Stephen Hardy, says, “Roughly half of all adult Australians don’t have a valid will and even those who do often make basic mistakes that mean their wishes won’t be properly carried out.”
When hiring an Estate Lawyer you are getting a professional with a keen eye to observe any discrepancies in your Will. Often times Wills are never as simple as they seem. Too many people make the mistake of thinking their circumstances are not that complicated and will opt for a DIY Will kit.
Take the example of a young married couple looking to create a Will for their young child. They thought all they had to do was designate their child as the recipient of their estate and choose a guardian and they were done.
Things they hadn’t considered were what would happen if all three in the family were to die in an accident, such as a car crash. In this scenario it would be good to mention further that where the Estate would be divided (ie. 50/50 between both sets of siblings on both halves of the family).
Also, when naming a guardian you are not meant to add more than one person. This is a common mistake, especially if you were to designate another couple in your family or friendship group.
Also, many prefer to be very prescriptive about how money should be left; however, given the need for flexibility these would be best left for co-trustee to manage.
We hope this article has given you better idea about the importance of hiring a professional to review your Will. If you would like more information on Estate Law, do not hesitate to give Hentys Lawyers a call.