Making a Will is the essential step in estate planning – outlining your wishes and how your loved ones are to be cared for when you are no longer around. Surprisingly, some people still feel that spending money on ensuring a Will is validly prepared is unwarranted. While DIY Wills and DIY Will Kits are money savers, making a Will without legal assistance could place your Will at risk of being invalid.
What is a DIY Will?
It is a Will that is not prepared by a solicitor. DIY Wills is the product of a homemade Will. They are often found at your local post office, news agency, or online.
Should I make a DIY Will?
In short, no.
A DIY will has its inherent risks. These risks include:
Your will is not executed correctly
Under the Wills Act, there are specific rules on how your Will is to be executed. Failure to satisfy these legislative requirements could render your Will invalid.
An invalid Will may result in intestacy rules applying, which are a strict formula-based distribution method under the Administration and Probate Act. The distribution of your assets under the intestacy rules could vary vastly from your wishes.
Your Will does not deal with your assets entirely
While some assets may come to the forefront of your mind (i.e. family heirlooms, savings, real estate), others may not.
A DIY Will may only cover the most basic estate planning scenario, but what about complex situations? For instance, how would you deal with your shares in a self-managed super fund, or your equity interest in a private company?
A Will that does not deal with the entirety of your assets could invalidate your Will.
You make mistakes with the wording of your Will
A clearly prepared Will would give effect to your wishes. A DIY Will is not reviewed by a professional, with only general advice and guidance accessible in terms of support.
Ambiguous provisions and/or ill wording may mean your assets are not distributed to the intended beneficiaries. Can you imagine the stress this would place your family under when they are unable to determine what your exact wishes are?
Your ‘testamentary capacity’ is in question
Your solicitor must ensure that you had testamentary capacity (i.e. were of ‘sound mind’) when making your Will. This avoids your Will being contested.
It is harder to determine your testamentary capacity if you have a DIY Will. A successful capacity claim could invalidate your Will.
Where to from here?
It’s never easy having that conversation about estate planning. But we are here to help break that barrier. Call us today on (03) 9590 6180.
