Here at Warlows Legal, we were alarmed to learn that around half of all adult Australians don’t have a valid Will, and even those that do often contain mistakes which mean that their wishes are unable to be properly fulfilled.
With the increased availability of Will kits online and through various outlets such as Australia Post, the NSW Trustee & Guardian has experienced a sharp rise in time spent unravelling issues that arise with the use of these kits, according to Chief Executive Imelda Dodds in a 2012 newsletter. Dodds says that the Wills that come out of these kits are ambiguous, can be misinterpreted and therefore challenged, or even worse, are invalid.
Although the maker of the Will (or “testator”, in legal jargon) might save a few dollars by purchasing a Will kit instead of seeking legal advice, problems can arise which often lead to delays in administering or finalising an estate. It can also result in either the testator or their family and loved ones incurring substantial fees in trying to rectify or resolve these issues.
Here are our top 10 issues to be wary of if you are considering using a DIY Will kit:
- The Will has not been signed properly according to law and/or dated properly, so the Will is invalid.
- People often name friends or family who are similar in age as the executor. If the named executor is no longer alive or able to act and there is no substitute executor is named, the Will is invalid.
- The names of executors and beneficiaries need to be exact. If the names are incomplete or incorrect it may lead to confusion and subsequently delays.
- If the testator does not dispose of their entire estate this leads to a partial intestacy (that is, dying without a Will).
- The testator gifts a specific item to someone but at the time of their death the item is no longer in the possession of the testator and no other provision is provided.
- Another common mistake is to gift assets that the testator doesn’t actually own. The most common example of this is assets held jointly, such as a business or superannuation fund.
- Most people don’t realise that any Will is revoked by a subsequent marriage. Similarly, a divorce revokes any reference to the former spouse by way of executor or beneficiary or power of appointment in the Will.
- People may put unreasonable conditions on certain gifts such as “Person X can have my diamond engagement ring, but he cannot give it to his wife who I hate”, or other such conditions which may be against public policy or are impossible to enforce.
- If a testator makes the decision not to leave anything to a family member, it is helpful to give reasons in the Will or an accompanying document such as a letter of wishes. For example, if there is a legitimate financial reason that the person was left out (such as giving them various financial gifts over the years) those details might be helpful in construing the Will. The Will may otherwise be vulnerable to be challenged by the person who was left out.
- Last but not least, not being able to find the original Will is a surprisingly common occurrence. Someone – ideally, the executor – needs to know where the original Will is located. We recommend that regardless of whether you’ve done your Will yourself or sought professional advice that you discuss with your executor where the Will is, what is in it (that is, what you intend), and most importantly, why. If you have taken the latter route your solicitor Will normally go through all of this with you, as well as keep a copy of your Will for safe keeping.
These issues can cause otherwise avoidable stress and expend a lot of time and money.
”We actively encourage all adults to make provision for their future…we also say it is very important to take professional advice,” recommends Dodds. Professional legal advice Will ensure that a Will is as robust as possible and is able to effectively carry out the wishes of the testator.
Where particular and specialised support is needed in the event of disability or incapacity, Warlows Legal is proud to be your trusted legal advisor. Similarly, in the event of contested matters, you can rely on our litigation team to resolve disputes and provide qualified representation.