Australia: Why do-it-yourself Wills are a don't - see a lawyer when drawing up your will

Last Updated: 6 March 2014
Article by Paul Kordic

Do you want your estate to pay lots of money to lawyers? Then spend $20 on a do-it-yourself Will.

A range of do-it-yourself Will booklets have sprung up in recent years, giving the public seemingly cost effective options to draft their own Wills.

It could be argued that something is better than nothing when it comes to indicating how you want your estate to be divided up. While these DIY options may appear straightforward and legal, think of your beneficiaries and intended executors, who will have to deal with the consequences if your DIY Will is defective. What seems like a good way to save money now can result in an expensive, emotional, and destructive experience for those you leave behind.

There's no legislation in Western Australia that states when probate or letters of administration is required. As a guide, if the value of your estate is likely to be $20,000 or more, a grant of probate or letters of administration is generally required. Probate or Letters of Administration is a document issued by the Supreme Court certifying the Will's validity and/or confirming the appointment of an executor or administrator to administer the deceased estate.

If your assets are not owned jointly (such as bank accounts or property), probate will be required to demonstrate to the bank or to Landgate (or other official bodies) that a person is authorised to deal with your estate.

One simple example of things going wrong is a matter where the deceased had used a $20 DIY Will and probate was required. A valid Will requires the testator/testatrix to execute the Will in front of two competent witnesses. In this case, the deceased had signed where one of two witnesses was required to sign, leaving space for only one witness. The single witness did so in the remaining space. The witness was also elderly at the time of witnessing the Will. This was an easy oversight because the signing provisions of the DIY kit were close together.

Probate was required because land formed part of the deceased's estate.

As a result of the Will being executed and witnessed incorrectly, costs of applying for the administration of the estate skyrocketed. Further, the siblings of the deceased were not on speaking terms, which delayed the application as some were reluctant to consent to administration being granted to the named executor, and one sibling was temporarily uncontactable because the other siblings didn't know where she lived. The cost of the application was at least 4 times what a normal application would have cost, and took 6 months rather than the general 6 weeks it would take if the Will had been properly executed.

Further delays were caused because affidavits were required from the witness of the Will who was elderly, lived in semi isolation, and lacked convenient forms of communication.

While you may think you're saving money initially by purchasing a DIY Will, you must take into account that the cost of administering your estate comes from your estate. The cost of the above matter meant that there was less to distribute to the intended beneficiaries.

The issues that arose from the incorrect witnessing were easily avoidable, and had the deceased had his Will drafted by lawyers, these simple problems would have been avoided.

So before thinking about saving money with a DIY Will, consider these other reasons why you may "spend money to save money" by seeing a lawyer when drawing up your Will.

Your affairs are more complex than you think

Drafting any document that has legal ramifications is complicated, and the same goes for your Will, regardless of the size of your estate. Courts have seen battles over seemingly menial issues such as the placement of a comma, highlighting the importance of having the document drafted correctly to convey your intentions. In a Canadian case, the placement of a comma in a contract ended up costing a company $1 million.

Your words and intentions can be misinterpreted

While the court will use its best intentions to apply your wishes, if there's no proof or supporting documents to assist with your intentions, it could use the common usage or legal meaning of the words used.

Using your own words is more likely to create ambiguity.

You control who you include or exclude

Despite your personal feelings towards some of your relatives, ex-partners, dependants, children, or partners who you are married to but separated from, omitting them from your Will is not as straightforward as it may seem.

You may require specific statements to be inserted in your Will to ensure they're not entitled to any of your estate.

Signing and witnessing will be done correctly

The execution of your Will must be done in accordance with the Will's Act. If the execution of your Will does not comply with the relevant Act in your state, it may be difficult for your executor(s) to obtain probate or administration of your estate.

We can advise on who is the best executor and trustee

The 60 year old relative you appoint as your executor may be sharp now. When you pass away are they likely to have capacity to administer your estate?

Receiving advice in relation to the role of the executor and trustee of your Will is important. Simply appointing a family member without considering their age, relationship with other family members, or even that they want the role may not be necessarily appropriate.

We will remind you to update your Will

Had a child since you last executed your Will? Have you married or divorced? Acquired or disposed of assets?

Chances are, your Will will be overridden by legislation stating who is entitled to receive your estate. We recommend updating your Will upon any significant life event, and will prompt you in the future to do so.

Hate the government?

If your relatives can't be found, or you don't have any, don't risk your assets going to the state government. We can assist in finding suitable people (not us) to bequeath your estate to.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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