A do-it-yourself or “DIY” Will kit might seem like a cost-effective way to ensure your assets will be divided and distributed according to your wishes when you pass away.
Unfortunately, the DIY Will can have disastrous consequences and can cost more in the long run, have a higher likelihood of being overturned, may not comply with legal requirements and may not be suitably written for your circumstances.
The Appeal of DIY Wills
The appeal of DIY Wills stems from their affordability and convenience.
- In comparison to paying a lawyer to draft a Will, DIY Wills come at a fraction of the cost.
- They can also be done at home whenever the Willmaker chooses to create the Will.
- DIY Wills may also be appealing as they allow for greater privacy. A Willmaker does not need to disclose their assets, liabilities, beneficiaries and executors to a lawyer if they are creating a Will themselves.
- DIY Wills can also still be legally binding as long as they are executed correctly.
Common Risks Associated with DIY Wills
DIY Wills come with a lot of risks. Often these risks outweigh the benefits and can include the following:
1. The Will was not executed properly
If the Will does not adhere to execution requirements, where it has not been signed or witnessed correctly, it will likely be invalid.
2. Incorrect or ambiguous language or naming
As DIY Wills are created to be more of a “one size fits all” document, the wording used can often be ambiguous. Ambiguous wording can result in the Will being challenged in Court or may result in the Will being misinterpreted. This can also be the case if a beneficiary or executor has been named incorrectly.
3. The DIY Will is too simplistic for the Testator’s needs
It is likely that a DIY Will is too simplistic to deal with the assets of someone with a blended family. It is imperative that individuals with blended families seek detailed legal advice from a reputable Wills and Estates lawyer to avoid disputes and to ensure the Will correctly reflects their wishes.
4. The DIY Will does not adequately deal with the Testator’s assets
DIY Wills often fail to deal with all of the Testator’s assets, leaving some assets to be dealt with separately. Alternatively, the Will may gift assets that should not be gifted for example money in joint accounts or property as joint tenants with another person.
Also, the Will maker may not be aware that a property held as joint registered proprietors with another party will not flow into their estate to be dealt with under their Will, but rather pass by way of survivorship to the surviving owner. If the owner of real estate held as joint registered proprietors with another party does not want that property to pass to the survivor but instead flow into their Will to their nominated beneficiaries, they would need to engage a lawyer to sever the joint tenancy.
Another issue that commonly comes up is people not realising that their superannuation will not flow into their estate to be dealt with under Will, unless they have completed a binding death benefit nomination to their Executor or Legal Personal Representative.
5. The Testator did not have capacity, or is alleged to have not had capacity
A Testator must have capacity to make their Will. This means that they cannot make a valid Will if they are impaired by conditions such as dementia or Alzheimers disease.
When a lawyer meets with a client to take their instructions, they are also assessing whether the individual may have any issues with capacity. If there is evidence that a person had a condition affecting their capacity at the time the DIY Will was executed, it may be overturned if it is challenged in Court.
If a lawyer has concerns about capacity, they will advise their client to be assessed by a specialist Geriatrician as to capacity to deal with the disposition of their estate.
Just because someone has issues with memory does not necessarily mean they will lack capacity, but having a supportive medical report can assist if a Will is disputed.
Legal Requirements for Wills in Australia
For a Will to be valid, three requirements must be adhered to:
- The Will must be in writing and dated;
- It must be signed on each page by the Testator;
- Two adult witnesses need to witness the Testator’s signature and sign the Will on each page as well.
Along with these drafting requirements, the Testator must also have capacity when executing their Will and must be making their Will freely and voluntarily.
Case Studies: Where DIY Wills Went Wrong
Wehbe v Giotopoulos [2023] NSWSC 827
In the case of Wehbe v Giotopoulos [2023] NSWSC 827, Mrs Wehbe had passed away leaving her entire estate to her three sons, excluding her two daughters.
Her husband had passed away two years earlier, and Mrs Wehbe relied on her children as she had a limited understanding of written English.
Mrs Wehbe had executed a DIY Will prior to her death which one of her sons had purchased and filled out for her. The daughters claimed that their mother did not know she was signing a Will and did not know what the document contained.
The Court found that Mrs Wehbe had died intestate and so her estate should pass equally to her five children according to intestacy laws.
The Courts findings were based on the lack of evidence that two independent witnesses were present when Ms Wehbe signed the Will, the lack of evidence that Ms Wehbe understood the contents of the Will and also that there was no clear reason why Mrs Wehbe would have wanted to exclude her daughters.
Thompson v Upton [2021] WASC 158
In the case of Trevor Alan Thompson as executor of the estate of Angela Helen Thompson vs Upton [2021] WASC 158 Mrs Thompson wrote her own Will.
Her Will was written in a way that made it difficult for her Executor, who was also her husband, to follow the instructions in her Will.
There were issues with Mrs Thompson’s Will as she had not included a residuary clause (i.e. where the assets should go in the event the gifts in her Will failed) even though one of the clauses in her Will referred to her residuary estate and specific properties were left to her two daughters however the executor was empowered to sell, exchange, or dispose of assets in Mrs Thompson’s estate.
Some of the clauses in the Will could not be carried out by the executor because they were unclear.
The Court found that there was an intestacy in relation to one of the properties due to the wording being unclear. The estate in this case amounted to approximately $511,000 and the Court proceedings consumed a significant portion of the estate which would otherwise have gone to the beneficiaries if the Will had been drawn up properly by a solicitor.
DIY Wills vs Professional Wills: A Cost-Benefit Analysis
Although DIY Wills may seem like the perfect cost-effective alternative to having a Will drafted by a solicitor, the $30 spent on a DIY Will does not outweigh the benefit of spending $500 to $2000 on a professionally drawn Will that is well drafted and tailored to your circumstances.
A $30 DIY Will could turn into a $100,000 legal dispute which would significantly reduce the size of the estate. It is important to have your Will drawn up by a reputable Wills and Estates lawyer to prevent future issues from arising.
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Kate Scolyer – Solicitor– Matthies Lawyers
Should you wish to obtain advice regarding your estate planning matters, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice