We get it, downloading a $20 DIY will kit online or writing something up on a blank piece of paper yourself is tempting. It’s cheap, it’s convenient, and most alluringly, you didn’t have to set time aside to talk to those pesky lawyers. But let us tell you, that as painful as it may be to pay a bit more, or have to answer questions, it is a small price to pay in order to avoid the devastating consequences commonly associated with DIY wills.
Unfortunately, it is all too common for a DIY will to result in a person’s assets not being passed on to the right people or not being passed on to any nominated people (known as ‘beneficiaries’) at all. The problem with a DIY will is that no person, particularly not the will maker, having received no professional assistance in the process of creating their will, would have a clue as to the errors or inadequacies contained within their DIY document. This is until it comes to light when the will maker has died, and it is too late to fix any problems the will may have.
In our experience, the following are just a few errors commonly associated with DIY wills:
- The number one issue is that the execution of the DIY will is not properly carried out. A common mistake is that the will has not been properly signed in the presence of two witnesses or that the witnesses are also the beneficiaries etc.
- The people mentioned in the will such as the executor or the beneficiaries are not correctly identified (as is required by the law), making it uncertain who the will maker was actually referring to, and therefore they cannot be appointed or given the gift out of the estate, which was intended for them.
- DIY wills are often misplaced and cannot be found after the will maker has died. This is because DIY wills are stored with the will maker as opposed to it being stored with your solicitor.
- After the will has been executed, the will maker remembers something else they want to include in their DIY will and tries to make changes to it even though it has already been executed.
- A DIY will maker may mention what should happen to assets that do not automatically go to their estate such as jointly owned property. This happens when the will maker did not apply proper estate planning to go with the will’s instructions, resulting in these types of assets being unable to get distributed in the way the will maker wanted.
The list can go on and on.
A properly drafted will with the assistance of a professional will drafter (Wills & Estates lawyers), ensures that you have a legally valid will, one which does what you want it to do.
BELOW IS A RECENT CASE WE WERE INVOLVED IN THAT HIGHLIGHTS THE CONSEQUENCES OF HOMEMADE WILLS
After purchasing a DIY will kit from his local newsagency, the deceased completed the document as directed by the will kit, and in the process, crossed out a particular section of the DIY will, presumably because he did not know what it meant or wished to simplify the will. This section had the effect of nominating a person (or people) who would receive any assets which may not be able to be distributed to the people nominated within the will (beneficiaries), for whatever reason. In other words, what should happen with any ‘left-over’ assets if any of the will maker’s instructions under the will fail. He then went on to write what he wanted done with all of his assets and belongings, gifting various things to a number of beneficiaries.
When the will maker died, the executor went on to try and distribute the gifts only to find that the wording the will maker used was considered unclear in certain sections and had inconsistencies in other sections. This resulted in one of the main assets, being his family home, failing as a specific gift and falling within this ‘left-over’ asset section. However, having crossed that section out of his will, there was no direction as to what should be done with ‘left-over assets’.
The consequence was that the family home did not go to the person the deceased wanted it to go to. The deficiencies in the will meant that this man’s main asset was dealt with in the same way in which it would have been dealt with had he died without a will. The person who believed the family home was intended to be left to them (‘the intended beneficiary’), came to us to try and rectify, in other words, repair the will so that they could receive the family home they didn’t get to receive as a result of this defective DIY will.
This is an up-hill battle to say the least, one which requires an application to the Supreme Court. In these rectification cases, the Court needs to be satisfied that the will should be read a certain way and that this is what the deceased person would have wanted. This requires a lot of evidence and an extremely careful interpretation of the will by the Court. It is very expensive, time-consuming and stressful for all parties involved. It is also not inconceivable that such a Court case could end up wasting most of the estate’s assets, and even then, the Court may decide that the will is not able to be rectified.
WHAT YOU CAN LEARN FROM THIS
The above case happens all too often but the good news is that it can be very easily avoided if you have a professional drafting your will with you and planning your estate properly. That way your intentions are clear and legally-binding and you do not have to worry about your estate being distributed against your wishes.
Please call our Wills & Estate Team today for a no-obligation, free chat on (02) 8006 1596.