The DIY Will Kit: to use or not to use?
One question we are asked a lot is whether you should see a Solicitor to have your Will completed or if you can use a Will Kit you would purchase from a Post Office or online.....
In fact, the question was: “Why should I pay a Solicitor to write my Will when I can do it myself for $30 with a DIY will kit?”
As Lawyers with experience in defending Wills and in contesting Wills, we strongly support the need to see a Solicitor to have your Will completed. We know how wrong Wills can go. We know how the loved ones and friends of friends of someone react after their loved one has passed away and it is often different than the person leaving their Estate thinks. We know how the grief of losing a loved one can become a second priority when the contents and way their Will was drafted or not drafted at all becomes a legal mind field.
In saying that DIY will kits are still everywhere. We admit that on the face of it, these DIY will kits are appealing, for the apparent low price, convenience and speed of the process.
The Chief Executive of the NSW Trustee and Guardian, Imelda Dodd’s has recently said “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”.
Unfortunately, this means that a significant amount of wills are ‘ambiguous, can be misinterpreted and therefore challenged, or are not valid and able to be executed’.
The issues that arise with will kits only eventuate after you have passed away and your loved ones are trying to administer your estate. In some cases we have seen, there have been so many issues that at the end of resolving it all, there is virtually nothing left for your loved ones to enjoy. This is heartbreaking for all involved. You want your loved ones to be able to grieve when you pass and not have the added stress of an Estate dispute or complication.
In our opinion the main dangers of using a DIY Will Kit are:
1. The issues that may arise with the drafting of a Will through a Will kit will only eventuate after you have passed away and your loved ones are trying to administer your estate. In some cases, we have seen, there have been so many issues that at the end of resolving it all, there is virtually nothing left for your loved ones to enjoy. This is heartbreaking for all involved. You want your loved ones to be able to grieve when you pass and not have the added stress of an Estate dispute or complication.
2. The Will is incorrectly signed and witnessed, and this causes your Will to be totally invalid as if you had not completed a Will at all.
3. The Executor has died or does not want the role and there is no substitute provided and this leaves your Estate without anyone to take charge and look after your assets and the beneficiaries you intended to benefit from your Estate.
4. The will is ambiguous, in that a specific gift fails therefore being possibly gifted to the wrong person.
5. A will attempts to include superannuation which is not a part of the assets that can be divided and administered by someone’s Will. By including superannuation, you could disadvantage a beneficiary unintentionally.
6. The Will attempts to do something which is not enforceable, such as disinheriting your child, placing unreasonable conditions on the gift or incorrect powers are given to the executor which then leaves your Estate open to litigation and the legal costs of the dispute are taken from your Estate which disadvantage your beneficiaries.
7. Not naming guardians for your children which could potentially leave your children without direction and care after your passing and could lead to dispute within your family as to the preferred carer of your childre
8. The assets gifted to children under 18 are not correctly set up to be held on trust for them. Which could mean that a beneficiary receives the benefit of your Estate before they are financially responsible enough to invest it or use it wisely.
We feel strongly about correct and considered Estate Planning. You wouldn’t go to the Post Office to obtain advice about a tooth extraction or what medication to take, so why would you want that for one of the most important legal documents you will have? Your Will is the only legal document which will be considered after you are no longer here to interpret it – so you need to get it right!