Thinking about writing your own Will or creating DIY Wills to save some time and money? It is a common thought, but it can lead to problems down the track for your loved ones. While a simple, do-it-yourself Will or DIY Wills may seem appealing, the law surrounding Wills is complex and unforgiving of mistakes.
A Will is a legal document that sets out how your assets (your ‘estate’) are distributed after you die. It is more than just a list of who gets what. It is a legal instrument with specific requirements for validity. If your Will does not meet these requirements, a court can challenge it and find it invalid. This can cause immense stress, financial cost, and heartache for your family at an already difficult time.
What Are the Risks of DIY Wills?
The potential issues with DIY Wills often come from a lack of legal expertise and from not taking a holistic approach to individual circumstances.
Invalidity
For a Will to be valid, it must meet certain criteria. It must be in writing, signed by you (the ‘testator’), and witnessed by two people who are not beneficiaries in the Will. If you miss any of these steps, or if witnesses are also set to inherit something, a court may declare your Will invalid.
Ambiguous wording
A Will must be clear and unambiguous. Vague language like ‘my best friend’ or ‘the house’ can lead to disputes. Who is your best friend? Which house do you mean if you own more than one? These ambiguities can force your family to go to court to interpret your intentions. This process is expensive and time-consuming.
Forgetting to appoint an executor
The executor carries out the instructions in your Will. They manage the estate administration, including paying debts and distributing assets. Without an appointed executor, administering your estate can become delayed and complicated.
Not providing for contingencies
A well-structured Will should cover ‘what if’ situations. For example, you should consider what happens if a beneficiary dies before you. You should also consider what happens if you no longer own an asset you have gifted.
Failing to account for all assets
A DIY Will may not properly account for all assets, especially complex ones like superannuation or assets held in trusts. Superannuation is not automatically included in your Will. It requires a separate binding death benefit nomination. If this is missed, a significant asset may be distributed in a way you did not intend.
Inadequate provisions for dependents
Legislation across Australia allows certain people to challenge a Will if they believe they have not been adequately provided for. This often includes spouses, children, or financial dependents. A lawyer can help you structure your Will to reduce the risk of a successful challenge. They can also help you understand your legal obligations.
What Are the Benefits of Using a Lawyer to Prepare a Will?
Every person’s situation is unique. A lawyer can draft a Will tailored to your circumstances. This ensures it reflects your wishes and protects your loved ones.
- Legal expertise and validity: A lawyer knows what is required to make a Will legally binding. They ensure all formalities are met and reduce the risk of a successful challenge.
- Clear and precise language: Lawyers use specific legal language to reduce misinterpretation. This helps prevent disputes and ensures your wishes are carried out as intended.
- Comprehensive advice: A lawyer considers all aspects of your estate, including superannuation, trusts, and other complex assets. They also help identify issues you may not have considered.
- Minimising family disputes: A professionally drafted Will helps prevent family arguments and court battles. It clearly sets out your intentions and reduces ambiguity.
Key Takeaways
Writing your own Will may seem like a simple and cost-effective solution, but the risks are significant. A poorly drafted Will can lead to legal challenges and family disputes. It may also be found invalid. Engaging a lawyer to prepare your Will is a small investment. It provides peace of mind and ensures your final wishes are carried out correctly.
This is general information only and does not constitute legal advice. We recommend obtaining professional advice relevant to your circumstances. If you or someone you know wants help or advice, please call 08 9336 6300 or email [email protected].