DIY Wills are like DIY dentistry. You may be able to remove your own tooth, but there will be blood everywhere. Similarly, preparing your own Will may seem simple but can have disastrous consequences.
It is easy to find a Will template or buy a cheap 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.
However, writing your own Will leads to greater expense in the longer term.
Why you need a valid Will
The main purpose of Will is to direct where your assets go when you die.
Without a valid Will then the intestacy rules set out in the relevant State legislation apply, but it is often necessary to apply to the Supreme Court (with considerable expense and delay) to obtain appropriate orders.
This also applies if your Will only deals with part of your estate.
The legislation does not necessarily give your assets as you might expect. In Queensland for example, if your home is in one spouse’s name and that spouse dies, as surviving spouse you will share your home with your children. It is much harder to set the rules for living under your roof, if it is actually “our roof”.
Wills Ain’t Wills
Just because you have a Will in place does not mean that the task of succession planning is achieved. Your Will does not or may not have any effect on:
- assets held as joint tenants;
- superannuation;
- life insurance;
- assets held in a discretionary trust.
Your Will does not appoint an attorney to make decisions during your lifetime.
All these tasks are dealt with (or may be dealt with) outside your Will. This means that a DIY Will might be completely ineffective to deal with a substantial part of the assets you consider yours.
Will you Think of Everything?
Lawyers practising in succession planning are experienced in identifying issues to consider and address in your Wills. You may not think of all the issues you need to address in your Will.
A simple example – you do not die as a couple, you die as an individual. Clients once proudly showed me their DIY Wills, which left everything to their daughters. They had made no provision for one another. Their home happened to be in the wife’s name. If she died first, the home would pass to their daughters. The husband would be left homeless. That may not prove to be a problem. Perhaps the daughters would happily transfer the home to their father. Perhaps they would not.
Is Your homemade Will Signed Correctly?
There are strict requirements for signing and witnessing Wills. If your Will is not signed correctly, or not witnessed properly it may be invalid, or at least require an application to the Supreme Court for validation.
If you have made your Will and then subsequently write on it, make a mark on it or even paperclip other documents to it, that risks invalidating that Will rendering it ineffective, either partly or fully, in dealing with your assets or causing the Supreme Court to ask questions about the changes to the document – adding costs to the process.
Superannuation is Outside of Your Will
Your superannuation does not belong to you. It is held on trust for you. Accordingly, the starting point is you cannot give your super away in your Will. Your Will may be completely irrelevant.
To deal with your super you must make a death benefit nomination in accordance with the rules of your super fund.
If your nomination does not follow the rules it may be invalid and ineffective.
Do you own or control a company or a discretionary trust?
Assets held in a company or trust do not belong to you. Your Will cannot give those assets away. The manner of dealing with control might be through your Will or it might be through a separate document such as a deed appointing a successor to the control of a trust.
A careful review of companies and trusts is required to properly identify their assets and how control must be passed to your chosen successor.
A home-made Will is more easily lost
When a lawyer prepares a Will, they usually hold the Will in their safe custody after signing and provide you with copies.
Even if you take the original Will the lawyer will usually retain a copy of the original Will. If you subsequently lose the original Will your family can apply to the court to approve the copy of the Will and give effect to the wishes in that Will.
If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration – a more lengthy and costly method of dealing with an estate than the usual grant of probate.
What if it Goes Wrong?
If your DIY Will does not give proper effect to your wishes, the consequences can be severe. An application to a Court may be required to deal with your estate. The likelihood of a dispute rises.
If you think the cost of properly preparing a Will is high, consider the costs of not having a properly prepared Will. A disputed estate can easily lead to costs of many tens of thousands of dollars for each of the parties to the dispute. Usually, those costs come from the estate. This means less money passing to your loved ones.
Lawyers are trained to prepare appropriate and valid Wills
Much of the benefit a solicitor brings to the estate planning process is guiding you to think about all your assets and what you really wish to happen in the event of your death.
When drafting your Will, your lawyer will always:
- take into account the strict legal requirements for a Will to be considered valid; and
- consider your particular situation and assets, and specific issues you need to provide for in your Will.
Your lawyer will also ensure you consider whether you need a guardian for your children, a trustee to run your business, whether a spouse, child or an elderly relative needs to remain in your home after you are gone and a myriad of other life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice in preparing a valid Will, please contact us on 07 5443 4744 or email info@pacificlaw.com.au.
