Are "do it yourself" Wills legal? Yes, but using a DIY Will kit comes with its own risks of which you must be aware.
Problems with 'do it yourself' Wills
1. It can be more costly to prove a DIY Will to the court. When a Will maker passes away, the executor/s will have to make an application for a court order to confirm the validity of the will, which is called an application for a Grant of Probate. If a will has not been drafted or executed in the manner required by the law, executors may have to incur additional legal costs in attempting to prove the will and potentially making a court application for it to be recognised as an "informal Will". This expense will be borne by the estate, which ultimately reduces what the beneficiaries would have received from the estate.
2. DIY Wills can be unclear and may not record the Will maker's intention accurately. Changes in Wills that are ambiguous will make it difficult for the executor to understand the Will maker's intention. Gifts may also fail if not identified with sufficient precision. This may cause uncertainties in distribution.
3. DIY Wills may not cover all of your assets. Listing all of your assets in a DIY Will does not necessarily mean that your executors can distribute them. In fact, assets such as jointly owned properties, superannuation, life insurance policies and assets owned by family trusts do not automatically form part of your estate. They need to be planned differently for beneficiaries to receive them successfully.
4. You may have special needs that are not provided by a DIY Will. In some circumstances, a trust may need to be established to hold the assets for your minor child/ren or beneficiaries with any disability. Trusts are also beneficial to avoid paying unnecessary tax (which might be substantial). In other circumstances, you may want to provide some flexibility to your executors in management of your assets, such as allowing them to make investments. These specific clauses are not generally provided in a DIY Will.
5. DIY Wills can be more vulnerable to a potential challenge by a disappointed family member. The Administration and Probate Act allows eligible persons (such as a child, former spouse and de facto partners) to make a claim against your estate. There are strategies that can be implemented both in and alongside a properly drawn will that can assist in defending potential claims. These strategies will not be countenanced by a DIY Will.
How to Make Your Will Incontestable
A Will maker (also known as a testator) is always advised to consult with an experienced lawyer before making a Will in order to ensure the best protection for their beneficiaries.
Lawyers can ensure that your will is drafted and executed to be compliant with legal requirements, so avoiding executors incurring extra legal costs in the course of making an application for Grant of Probate.
More importantly, lawyers can also help to minimise the risks of your will being contested (such as drafting a certificate of capacity and/or a statutory declaration to accompany your Will). This should save your executors facing litigation down the track.
Overall, DIY Wills are cheap, but it is not the best idea to save costs on making a Will and then your estate incurring extra costs (likely to be much more substantial) after your death. The potential loss and expenses caused by a defective Will can be significant. Ultimately, the priority of any Will maker is to ensure that their estate is passed on effectively to the next generation and in accordance with their wishes. An experienced lawyer can provide you the peace of mind and work with you to achieve your desired outcomes.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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David is a Senior Lawyer and Consultant with Sharrock Pitman Legal.
He is an Author, Accredited Mediator and Advisor for Charities & Not for Profits (accredited by the Law Institute of Victoria). For further information, contact David Sharrock by email at email@example.com.