It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.
So, is it really a good idea to write your own Will?
Why you need a valid Will
The sole purpose of writing a Will is that you can direct where your assets go when you pass away.
If you have a Will that is deemed not valid by the probate court then your estate will be bequeathed in accordance with the Succession Act which sets out who the beneficiaries of your estate will be in the event that you do not have a will or your will is found to be invalid. An estate distribution pursuant to the Succession Act may not be in accordance with your wishes. Additionally, any distribution may be exposed to delay and increased legal costs which may result in financial hardship and emotional anguish for your family.
Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they may apply to you or someone you know.
Your home-made Will is lost or cannot be found
When a lawyer prepares a Will for you they usually hold the Will after signing in their safe custody and provide you with copies.
Even if you take the original Will, your lawyer will keep properly certified copies of the original Will. If you subsequently lose the original Will, your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.
If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.
Your DIY Will is not signed correctly
There are very strict requirements for the signing and witnessing of Wills; if your Will is not signed correctly or is not witnessed properly it may be invalid.
If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.
Once your Will is made even writing on it later or making any changes will invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.
You own a business
It is likely that the business will continue to run after you die. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this in a valid Will.
Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.
Previously made Wills are not automatically revoked when you make a new Will
Only the occurrence of certain major life events, such as marriage and divorce, will automatically revoke a validly made will. However, our circumstances are constantly evolving and wills often require reflection and updating. If a new will is declared invalid and a previous will is not property revoked, the previously will may be upheld instead. If this occurs, the distribution of your estate may not actually reflect your wishes or life circumstances at the time of your passing.
If you leave your superannuation in your DIY Will
Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.
Whilst you can provide in your Will that your estate be given to whoever you would like there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.
Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.
Again, the release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.
If you don’t address important issues in your will
There are many issues that you may need to address in your will and which you may leave out in a DIY will. Your lawyer will go through these issues with you and incorporate the relevant clauses in your will. Examples of such issues are:
- Issues that may arise in a blended family situation and how to best deal with them in your will;
- Which assets will not automatically form part of your estate;
- Assets that are owned by a family trust and what does this mean when drafting a will;
- Determining whether shares held in a proprietary company may or may not be bequeathed under your will by reviewing the company constitution and/or shareholders agreement if applicable
- Do you own any overseas property? If so, is the property held in another Commonwealth country or non-Commonwealth country? The advantages and disadvantages of international wills where applicable and the alternative;
- Are you separated? Do you have a legally valid termination agreement or court orders dealing with any property settlement between you and your former partners? What are the consequences if you do or don’t?
- Would you like to allow someone to continue to live in any of your properties? Would you like to give the person a ‘life interest’ or a ‘right to occupy’? What is the difference of each interest?
- Family Provision claim. Is there someone who expects to inherit which you have left out of your will? Depending on who they are, what are the potential consequences of this? How can you attempt to mitigate the potential problem?
- Did you make a will before you were married? Does the will say that it was made in contemplation of marriage? If not, the will may be deemed invalid and therefore the laws of intestacy pursuant to the Succession Act will determine your beneficiaries instead of your will;
- Your wishes for who you would like to be the guardian for any child who is a minor (under the age of 18 years old) beneficiary in your will?
- Do you need to set up a testamentary trust for children who are minors? If so to what age?
- Do you need to appoint a trustee to run your business?
Lawyers are trained to write valid Wills
Your lawyer will always do these two things when drafting your Will, they:
- take into account the strict law requirements for a Will to be considered valid by the state probate court; and
- also consider your particular situation and the specific individualised elements you need included in your Will.
If you or someone you know wants more information or needs help or advice about preparing a valid Will, please contact us here or email [email protected].