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Why it’s a bad idea to write your own Will
It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you, seemingly without any legal expertise required.
So, is it really a good idea to write your own Will?
Why you need a valid Will
The sole purpose of writing a Will is to direct where your assets go when you die.
If you have a valid Will, where appropriate your executor applies for a grant of probate and distributes your estate, in accordance with the provisions in your Will.
If you don’t leave a valid Will (or leave a Will which only deals with part of your estate) then the intestacy rules set out in the Succession Act apply, but it is often necessary to apply to the Supreme Court (with considerable expense and delay) to obtain appropriate orders.
If you hold joint property with your spouse probate may not be required, unless significant assets are also held in your own name.
However there are many common situations where a valid Will is required to properly distribute your estate and provide for your family and loved ones.
If you leave a Will that is held not to be valid then your estate is likely to be exposed to delay in distribution, and very significantly increased legal and court costs, often resulting in financial hardship and emotional anguish for your family.
Many people think that their situation is simple and that a DIY Will may be enough, but in discussing their circumstances with us realise that things often aren’t as simple as they first thought.
Think of a professionally drawn Will as insurance.
We all know for certain we are going to die, and expect to have some assets at the time. Most of us have clear ideas as to who we wish to benefit on our death, and would prefer the process of distribution of our estates (and any assets controlled by us) to be handled as quickly, simply and cheaply as possible, with the minimum of stress to our families.
Any saving in expense in writing your own Will without advice is often vastly outweighed by the expense and delay to your loved ones in rectifying matters after your death.
There may also be significant tax or stamp duty advantages in structuring your affairs in a particular way.
The following situations are examples of cases where a properly prepared Will is vital.
Your homemade Will is not signed correctly
There are very strict requirements for the signing and witnessing of Wills. If your Will is not signed correctly, or not witnessed properly it may be invalid, or at least require an application to the Supreme Court for validation.
If your Will does not deal with all of the assets and liabilities you leave when you die your Will may be ineffective in dealing with those assets (this is called a partial intestacy).
Once your Will is made, writing on it later or making any changes risks invalidating that Will and rendering it ineffective, either partly or fully, in dealing with your assets.
You own a business
When then the business is to continue to run after you die, or be wound up, a validly appointed executor is required to run the business until it is either sold or dissolved. You can provide for this in a valid Will.
The business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family stress and hardship until the business can be liquidated if there is no one validly appointed to run the business.
You and your partner are not married
You purchased property together in equal (or unequal) shares, e.g. as you both have children from a previous relationship.
The property may not get transferred to either your de facto partner or your children as a matter of course. If you do not have a valid Will your property will not be dealt with in a simple and cost-effective way.
You are married but hold property solely in your name, or as tenant in common
You may have bought property when you were single, or may own the property from a previous marriage or have inherited it from your parents.
If you have no valid Will, the property cannot be transferred until the court appoints an administrator – involving delay and costs.
Do you own or control a company, act as trustee of, or control a trust?
Bear in mind that your Will can only dispose of assets owned in your name.
If you leave your superannuation in your DIY Will
Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in many cases superannuation will be paid directly to a beneficiary nominated to the trustee of the superannuation fund, without reference to the terms of your Will.
Whilst you can provide in your Will that your estate be given to whoever you would like, there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.
Superannuation funds have particular rules for releasing funds to estates and an invalid Will makes this process more difficult to navigate.
Again the release to your family is not automatic and your loved ones may suffer hardship or inconvenience and expense if the release of funds is delayed.
A home-made Will is lost, or cannot be located
When a lawyer prepares a Will for you they usually hold the Will in their safe custody after signing, and provide you with copies.
Even if you take the original Will the lawyer will usually retain a copy of the original Will. If you subsequently lose the original Will your family can apply to the court to approve the copy of the Will and give effect to the wishes in that Will.
If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration – a more lengthy and costly method of dealing with an estate than the usual grant of probate.
Lawyers are trained to prepare appropriate and valid Wills
Much of the benefit a solicitor brings to the estate planning process is encouraging you to think about all your assets and what you really wish to happen in the event of your death.
When drafting your Will, your lawyer will always:
- take into account the strict legal requirements for a Will to be considered valid; and
- consider your particular situation and assets, and specific issues you need to provide for in your Will.
Your lawyer will also ensure you consider whether you need a guardian for your children, a trustee to run your business, whether a spouse, child or an elderly relative needs to remain in your home after you are gone and a myriad of other life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice in preparing a valid Will, please contact us on 07 5443 4866 or email kwaddington@gwlaw.com.au.
Ken Waddington
Partner
(07) 5443 4866