When creating a Will, it can be tempting to want to avoid legal costs and pursue options such as DIY Will Kits from online or your local post office. However, this can create long, costly issues down the track, especially if the Kit isn’t completed correctly or doesn’t accurately reflect the complex aspects of your wishes. In our latest South East Lawyers blog, Wills & Estates lawyer Bridgette Dempsey discusses issues that can arise when creating your Will using a ‘do-it-yourself’ Will Kit, plus common examples she has seen from clients having to deal with the Estate of a loved one. Read it below.
Recently, our Wills & Estates team has seen a number of cases where the deceased had made a Will using a ‘do-it-yourself Will Kit’. Because these Will Kit Wills are filled out by the willmaker themselves without any advice from a lawyer, they are sometimes not filled out correctly. As a result, this can have consequences for the deceased’s intended bequests as the people or organisations the willmaker hoped to leave a gift to might not be able to actually receive that gift. Another concern is that they may only be able to receive the gift after extra burdensome steps have been taken by the Executor.
Some common examples of DIY Will Kit issues include:
Incorrectly executed Will Kits
For those who have filled in their wishes correctly for their Will Kit, we have noticed that there can still be hurdles if the Will hasn’t been executed correctly. For example, it might not be signed by both the willmaker and the witnesses on every page, or is without a date. Failing to include important details such as these can lead to increased difficulty in obtaining Probate of the Will, as the Court may have questions regarding the validity of the Will. The Court may require an Affidavit of Due Execution from the witnesses to confirm that the Will was signed in front of them and that the Will being presented for Probate is not different from the Will that was signed in front of them. On a number of occasions, our firm has even assisted Executors with contacting the witnesses to the Wills and arranging Affidavits of due execution.
Not properly describing a beneficiary
When it comes to incorrectly filling out a Will Kit Will, another common issue is not properly describing a beneficiary. It is important that the intended beneficiary can be clearly identified, otherwise your Executor will have difficulty distributing your Estate. For example, if a charity is not described correctly or no longer exists this can create problems when it comes to the distribution of your Estate.
Not describing a beneficiary at all
A similar situation that can occur is when the deceased did not fill in the beneficiary section of the ‘do-it-yourself Will Kit’ at all. They might have named someone under the ‘Executor’ section of the Will but not named anyone under the ‘Beneficiary’ section. This ultimately means the laws of intestacy apply to the distribution of their Estate.
This may not have been the willmaker’s intention, they may have just mistakenly filled in the wrong section of the ‘do-it-yourself Will Kit’. The outcome here is that the Estate has to be distributed to the same people it would have been distributed to if they had not made a Will. The person that was named in a different section of their Will does not receive any gift from the willmaker’s Estate. This illustrates the importance of having a properly drafted Will and obtaining legal advice to ensure your assets go to the people you wish to leave them to.
Not discussing the practicalities of your wishes with a lawyer
Discussing with a lawyer some different scenarios, and the measures to put in place should one of those scenarios play out can be very beneficial in protecting your wishes. One example of this is a case where, in their DIY Will, the deceased left their Estate to three beneficiaries in equal shares. They then stated in the Will that if one of the three beneficiaries had passed away, the Estate was again to go to those same three beneficiaries in equal shares. One of the beneficiaries passed away before the deceased, and this created an ever-diminishing cycle where one-third of the Estate kept going back to the deceased beneficiary. Ultimately, this created extra difficulty for the Executors in distributing the Estate, and legal support was inevitably required.
Seeking legal advice in relation to your Estate planning and having a lawyer prepare your Will is highly beneficial as it can help you to make sure your wishes are clear, and that they can be properly and efficiently carried out when the time comes. Above all else, working with a lawyer can save your Executors and loved ones from unnecessary difficulty and stress in their time of grief. To discuss your options, work with the Wills and Estates team at South East Lawyers here.