GUEST POST: The Curse of the Homemade Will

A Will is one of the most important documents a person can make… doesn’t it make sense to get it right?  Many people try to save money by preparing a ‘homemade’ Will or using a ‘Will Kit’ purchased from the local Newsagent or Post Office.  Chris Sheath, of Chris Sheath & Associates, is an Accredited Specialist in Succession Law (Wills and Estates) and knows that these kinds of Wills often lead to expensive legal battles.

Having a valid Will in place can save your loved ones a lot of money and stress.  By the same token, an invalid Will can cause tremendous stress to your family and cost them thousands of dollars in legal fees and court costs.

A Will is a legal document that stipulates who will receive your property and possessions when you die.  It is almost certainly the most important legal document you will ever create in your life; therefore, it is no surprise that there are significant risks involved in not completing a Will properly.

All Will Kits come with a disclaimer (have a look in the fine print) stating they are no substitute for proper legal advice.  Master Sanderson of the Supreme Court of Western Australia, delivered a decision in 2014 on this issue.  He said:

“on numerous occasions when dealing with so-called homemade wills, I have observed they are a curse.  Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better.”

Master Sanderson said the legal issue could have been avoided if the deceased had consulted a lawyer, and that there was no question that engaging a properly qualified and experienced lawyer to draft a Will was “money well spent”.

So why are Homemade Wills and Will-Kit’s a curse?

Often people use homemade Wills as they believe their estate plan is not complicated.  Unfortunately, Estate Planning is complicated… there is a reason an entire area of the law is dedicated to it!  Wills are legal documents and the forms involved in executing a Will can be confusing to someone who is not legally trained, and can result in poor drafting and unintended outcomes.

If the appointment of an executor is incorrectly completed, there will be uncertainty as to who may act in that role.  For example, we have seen cases with Will Kits where the substitute executor clauses have not been properly completed so there are multiple family members fighting to oversee the Will.

Certain assets (including superannuation and life insurance) do not ordinarily form part of an estate and therefore cannot be dealt with by a Will.  Separate provision needs to be made for these kinds of assets, which is outside the scope of many Will Kits.

The worst outcome of course is when a Will is unclear about who the assets are being left to – i.e. who should benefit from the estate.  Homemade Wills are often not examined by specialists or solicitors until the persons involved have passed away.  Therefore, there is no record of what the testator meant to do with their Will, as they never discussed it with an impartial third party.

This lack of impartiality can also lead to the malicious circumstance where a relative ‘helps’ another (often an elderly person) to make a homemade Will to ensure ‘their’ affairs are in order.  This can lead to significant arguments and litigation over the Will; sometimes it is necessary to seek an order from the court that such a Will is invalid.

piggy

Getting the court involved to ascertain the testator’s intention is the unfortunate outcome of many family Will disputes. The question the court will ask is not what the testator meant to do when she or he made the Will, but what the written words actually mean in that particular case. But asking a court to interpret a Will is not always a solution; there are some errors that even the court may not be able to rectify.  Something as simple as a Will that is incorrectly signed or witnessed may result in the entire Will being held invalid.

The risks involved in preparing a homemade or ‘Will Kit’ Will are numerous. When you consider the cost of court applications or possible litigation (which can run into tens of thousands of dollars), we caution against the temptation of preparing your own homemade Will. A solicitor can help not only prepare a valid Will but also assist you in developing strategies to minimize conflicts, tax and ultimately costs for your estate.

Okay, I want to prepare my Will properly.  How do I do that?

Having worked closely with Fortress Financial Solutions on estate plans for mutual clients, we know the benefit of the Estate Briefing Notes prepared by Fortress. For Fortress clients who come to us with the Estate Briefing Notes, Chris Sheath & Associate Solicitors will provide discounted fees to prepare a valid, legally compliant Will. To secure this discount, please book an appointment directly on the Fortress website, via phone on 07 4646 4970 or email at info@fortressfs.com.au

Preparing a Will is not a scary process (it is much scarier to die without one!) and if you still aren’t sure, please contact us. We are happy to give you some guidance and hold your hand through the process.

 

Written by Chris Sheath, Director of Chris Sheath & Associates Solicitors

Chris Sheath & Associates Solicitors are part of the Fortress Family as they share our values, personalised approach and commitment to building a strong professional team around their clients.  To learn more, contact Chris Sheath and his team on 07 4638 5541.

Information on this site may be regarded as general advice. That is, your personal objectives, needs or financial situations were not taken into account when preparing this information. Accordingly, you should consider the appropriateness of any general advice we have given you, having regard to your own objectives, financial situation and needs before acting on it. Where the information relates to a particular financial product, you should obtain and consider the relevant product disclosure statement before making any decision to purchase that financial product.

Liked this article? Share it!