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The risks of DIY Will Kits

 


Pros and cons of a DIY Will kit

DIY Will kits are a popular option due to their low cost. Some Will kits are even available free online or from some organisations. But are free or very cheap Will kits effective? In this blog post, we will look at whether they are binding and what they may not include. Ultimately, the true cost of using a Will kit may be far greater than you think.

Are Wills made with Will kits legally binding?

In short, yes. Any Will is binding provided that it meets certain requirements. The Will must be:

  • made by an adult;
  • in writing;
  • signed by the testator (the Will-maker), with the intention of executing a Will; and
  • signed in the presence of at least two witnesses, who also sign the Will.

This seems fairly simple and straightforward, however, there are many pitfalls involved in making a Will yourself using a Will kit.

Simple problems associated with DIY Wills

We have acted for Executors who have struggled to obtain probate for a homemade Will. Common problems include:

  1. The Will has not been signed or witnessed properly.
    While this may not be fatal, it can cast doubt on whether the Will is genuine or whether the testator intended to make a legally binding document.
  2. The Will is written or signed in different coloured pens.
    It sounds silly, but a different pen colour could suggest to the Court that parts of the Will were improperly added later, or that the witnesses were not actually present when the testator signed the Will.
  3. There are markings on the Will, such as indents from paperclips or holes from staples.
    This can indicate to the Court that there were additional parts to the Will that have been improperly removed. This may affect probate of a Will, even if the testator had merely paperclipped the Will for convenience and had not added pages.

More complex problems associated with DIY Wills

Besides execution, there are other deeper issues that may arise when you attempt to draft a Will using a Will kit.

These kits are basic forms, intended to apply to a broad range of situations – meaning that they are not specifically catered to you and your individual circumstances. A review by Choice of Will kits on the market found several areas in which the kits were deficient.

Gifts to grandchildren

Sometimes, one of your children will predecease you (that is, dies before you). Generally, this means that whatever you have left to them will fall into their Estate on your death, to be distributed as per their Will.

For example, if your son predeceases you and his Will leaves his whole estate to his wife, then she will receive his share of your Estate. Some people would prefer, however, that their estate passes down the family line to grandchildren.

Some popular Will kits do not include a provision allowing for gifts to pass to grandchildren if your child predeceases you. On the other hand, our Wills include such provisions as standard.

Effect of marriage or divorce on Wills

As explained in our earlier blog “Does marriage or divorce affect your Will?”, marriage or divorce can invalidate a Will unless you include a clause specifying otherwise.

Some popular Will kits do not allow you to include such a clause. This may pose a problem if, for example, you intend to marry your current partner but still want your Will that leaves your estate to your children to remain in force.

It is especially important to obtain legal advice regarding your Will in blended family situations.

Superannuation

Superannuation is a complex issue, especially if you are the trustee of your own self-managed super fund (SMSF).

Some Will kits do not mention superannuation issues at all, let alone contain adequate provisions to deal with your SMSF after your death. These issues can only be effectively dealt with by a lawyer and a properly drafted Will.

Guardianship of minor children

Some Will kits on the market do not contain clauses allowing you to appoint a guardian for your minor children.

As explained in an earlier blog “What things can I deal with in my Will?”, it is hugely important to select someone you trust to take care of your children if both you and your partner were to pass away.

It is also worth appointing alternate Guardians in case your first choice is unable or unwilling to act. Leaving out a guardianship clause could cause unnecessary stress for your children and Executors, who may need to seek orders from the Family Court regarding who cares for your children.

Companies and trusts

Business succession issues and trusts (either existing or created by your Will) are far too complex to be addressed in a generic Will kit.

You should obtain legal advice to deal with your business or trusts after your death or to establish a trust, such as for minor children or a relative with a legal incapacity.

Ultimately, anyone can use a DIY Will kit to make a Will (or at least attempt to). This will save you money in the first instance and maybe a bit of time. But the consequence may be plenty of headaches for your Executor down the line and the potential that all your beneficiaries are not who you intended.

If you want a Will that is legally sound, that deals with all aspects of your Estate as you intend, and that saves your family stress after your passing, your best option is to contact a solicitor.

Get help

The experienced team at David Davis & Associates is here to assist you with your Will matters, from the simple to the complex. We offer competitive rates for Wills and other Estate Planning documents, for singles or for couples. Contact us for more information or click here to get started on your Will today.

Contact David Davis Lawyers (including during COVID-19)

Phone: 03 9014 1299
Email: admin@ddavis.com.au
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