A Will is one of the most significant legal documents you’ll sign in your lifetime, so it’s important to get it right – but why?
It’s an opportunity to meet two goals: to have your wishes heard, and to make things easier for your family after you pass. If a Will isn’t written properly, it’s possible that neither of those goals will be met.
You should have a Will when you’re over the age of 18. ‘Do it yourself’ Will kits are highly publicised and may seem like an easy option, especially if your assets are minimal and uncomplicated. The problem is, there are some big risks in taking this option.
What are the risks of DIY Wills?
The biggest problem with DIY Wills is that it’s very easy to get them wrong. Even the simplest mistakes can cause the Will to be contested or held to be invalid.
Some of the most common mistakes we see are:
- Attempting to give away assets you don’t own. A Will can only dispose of assets that you own at the date of your death, but we often find that some people with a DIY Will try to give away assets that they don’t own. For example, we once saw a Will that contained a clause that directed the life insurance be used to pay off their house so that the Will-maker’s son could receive the house free of debt. Unfortunately, the life insurance policy nominated the Will-maker’s new partner as the beneficiary. When the policy was paid to the partner, they then refused to use it to pay off the mortgage. Had the Will-maker sought legal advice this problem would have been identified and the appropriate steps taken to ensure that the intention was fulfilled.
- Failing to comply with basic legal formalities. A Will is a legal document. There are legal requirements that must be followed when making a Will to ensure that the Will is valid. Simple things such as having only one witness to your signature or having the witnesses using different coloured pens can raise questions about whether your signature was actually witnessed. Basic errors such as these can either invalidate your Will or create costly disputes within the family.
- Being too specific in your Will. Some people who attempt to make a DIY Will try and give away every single thing they own. This creates two potential problems. First, the Will-maker often forgets to include a “catch-all” clause at the end of the Will. This means that there will be some assets that are not disposed of. These “forgotten assets” are then distributed in accordance with a formula set out in legislation. Second, some assets listed in the Will are likely to change. For example, if the Will leaves a house to a beneficiary and that house has been sold prior to the Will being executed, that beneficiary misses out on the gift. Proper advice at the time of preparing a Will can avoid these problems.
- Imposing requirements on a beneficiary. Some DIY Wills impose requirements on the beneficiaries that are sometimes unrealistic or impractical. This often happens where gifts made to a charity direct that the funds be used for a purpose that might no-longer exist. This outcome can be avoided if the Will is drafted correctly. Further, sometimes the identity of the organisation that is to receive the gift is unclear. This, too, can be avoided with proper advice.
- Forgetting to appoint an executor to the Will. Forgetting to appoint an executor of your Will won't invalidate your Will, but it can complicate or slow down the process of sorting out your estate. The failure to appoint an executor can also lead to a dispute as family members jostle to be appointed as Administrator of the estate.
- Overlooking the fact that circumstances change. DIY Wills often overlook the need to cater for change. A Will needs to be drafted to deal with any potential change in circumstance. While not every scenario can be covered, with proper advice the most obvious scenarios, such as a change in address, can be dealt with.
- Illegible handwriting. This is a simple but common mistake we often see with DIY Wills. If no one can read your Will, then you can't be certain your wishes will be granted.
What's the best way to make a DIY Will?
The first thing I say to people who want to write their own will is: don’t do it. But if you do have your mind set on the idea, here are some tips:
- Choose the Will kit carefully. It's worth doing some research and not just choosing the first kit you find. Some kits are more thorough than others, so look for one with detailed instructions.
- Make sure you understand what assets you own and how you own them. This includes your home, smaller items and additional assets such as superannuation and life insurance.
- Keep it simple. Overly complex or specific clauses can be hard to enforce.
- Follow the instructions carefully. Your DIY Will kit will come with instructions, so be sure to follow them carefully, both in terms of the content of the Will and signing the Will.
- Get a lawyer to check your Will. A legal document requires legal advice. By having a lawyer look over your Will, you can quickly identify any errors that could cause problems later on.
DIY Wills are often seen as a cheaper option to seeking legal advice, but that’s not necessarily true. Your DIY Will might cause more issues down the track, potentially costing your loved ones money or causing disputes. Be smart about your Will, whether you choose to make a DIY Will or seek advice from a lawyer.