Dying without a valid Will can have financial consequences for your loves ones that you did not expect or intend. It can also make the process of sorting out your estate a lot harder for the person left with the task.
If you are 18 years or over, then having a valid Will is a good idea and something everyone should consider.
Your Will is likely to be one of the most important documents you ever enter into. Your Will is the way you have your wishes heard after you die. Your Will should also make it easier for your family or loved ones to sort out your affairs after you die.
It is therefore extremely important that your Will is properly prepared. It needs to be written to ensure that it actually does what you intended.
You don’t have to have your Will prepared by a lawyer, although it is generally a very good idea to do so. A little bit of time and money spent now could save a lot of heartache for your loved ones later on.
Is the cheap option a good one?
DIY Wills are highly publicised as being a quick, cheap and easy option. People often think the same about doing a home-written Will or choosing to simply leave signed, handwritten instructions to be executed after death.
These types of ‘home-made’ Wills might seem like the inexpensive and easy option, but they rarely are in reality. Often these home-made documents cause serious negative consequences for the deceased’s estate and the people the deceased had intended to benefit.
It is so easy to make a mistake with a home-made Will, that no prudent lawyer would ever recommend you making one. The risks are high and mistakes are generally discovered after you die – which is then too late for correction. This could leave a terrible mess for the people trying to administer your estate.
Most of the Will kits I have seen have fairly poor instructions and really don’t give people the explanations they need to properly complete them. This is especially true for people who are not completely clear on their financial structures or on all the intricacies of what a good Will should do. The way the DIY Will documents are generally structured also make it extremely easy for mistakes to be made when completing them, or for important information to be left off entirely.
Some problems with DIY Wills
There are plenty of cases of disputes or confusion having to be dealt with in the Supreme Court of WA due to home-made Wills. Some of these errors include:
Terrible handwriting. If no-one can read what's been written, there is no way to fulfill the instructions in the home-made Will.
Forgetting to revoke any former Wills. If this isn’t done, then the new Will operates together with the old Will, rather than one document replacing the other. When this happens, all sorts of confusion can occur where the two (or more) documents give conflicting instructions. Generally it will be necessary to seek direction from the Supreme Court as to which documents operate and to obtain directions as to how to distribute the estate. This can be time consuming, stressful and expensive.
Only dealing with part of the estate. There have been situations where the Will writer thought they’d dealt with all of their estate, but had forgotten about assets or didn’t realise their description didn’t cover everything they owned. Where this happens a partial intestacy occurs and the forgotten part of the estate must be dealt with in accordance with the appropriate intestacy laws – which is the exact thing most people are hoping to avoid when they sign a Will.
Giving away an asset the Will-maker don’t own. This can occur where, for example, a person gifts a property they think they own, but which is actually owned by their company. The failed gift can have serious financial consequences for the intended recipient and result in an outcome the Will-maker had never contemplated.
Trying to disinherit a family member or dependent who has the ability to make a claim upon the deceased’s estate. Often an absolute disinheritance is not the best way of reducing a potential beneficiaries’ estate entitlement. A good estate planning lawyer will take extra care in this type of situation to either prevent or reduce such a person’s potential claim against the estate.
Trying to gift property which will not fall into the estate. For example, jointly owned land only falls into the deceased’s estate in the event the deceased is the last of all of the joint tenants to die. There are many situations where the testator would have changed his or her Will instructions if he or she had realised one of the Will beneficiaries was already going to receive the benefit of all of the jointly held assets.
Superannuation can also be difficult and confusing without seeking legal or financial advice before preparing a Will. Depending on the superannuation fund and the forms completed by the policyholder prior to death, the super death benefit may or may not form part of the deceased’s estate. As this is often a substantial sum of money, this could mean that the intended recipients don’t receive as much money as the deceased had planned or that one party essentially ‘scoops the pool’ by receiving all the super death benefit and a large portion of the deceased’s estate pursuant to the Will.
Home-made Wills can be dangerous and costly to the estate. Some simple mistakes, such as not witnessing the Will properly, won’t necessarily mean the Will is invalid. Some simple mistakes made in a Will can mean that substantially more cost can be incurred to the estate as the problems have to be resolved.
It is not uncommon for a home-made Will document to be ambiguous or interpreted in more than one way. This could mean the Will is invalid, the instructions so unclear as to be unable to be performed or leaving the estate vulnerable to a challenge or family provision claim. None of these are outcomes that anyone would want.
When a DIY Will can be especially problematic
Homemade or DIY Wills are especially not recommended for people who have more complicated interests or family structures (such as couples in second relationships). Legal advice should be obtained prior to writing the Will in relation to the structure of the asset and how best to deal with it in the Will and/or the complexities of the Will-maker’s family and dependents – depending on what’s relevant to you and your family. Issues of complexity include:
If you have a blended family – particularly where there are competing needs of children and step-children.
If you’ve experienced a relationship separation and property settlement has not yet been attended to.
When you have a dependent or immediate family member you do not wish to provide for.
If you have a company, family trust or self managed superannuation fund.
Is the saving worth the risk?
Home-made or DIY Wills can be tricky and a risk at the best of times. The money saved initially is often spent many times over trying to sort out the mess left behind due to a poorly written Will.
For this reason, whilst it is strongly recommended that you have a valid Will and it is also strongly recommended that you obtain legal assistance to have your Will prepared and signed.
A little cost now, is generally a lot better than a lot of cost and stress later on. Your DIY saving could be a big headache for everyone else later on.
