What do the courts think of ‘home made’ wills?

People considering making home made wills often ask ‘Why do I need to see a solicitor to make a will? Can’t I do it myself or just use a Will Kit?”

The answer is best addressed by the comments of Master Sanderson of the Western Australian Supreme Court in the case of Rogers v Rogers Young [2016] WASC 208 [1]:

“On numerous occasions when dealing with so-called home made wills, I have observed they are a curse. Home made wills which utilise what is sometimes known as a ‘Will kit’ are not much better. This case proves the point. The disposition effected by the Will is not complicated and no doubt the testator [Will-maker] had clearly in mind what she intended to achieve. But the way the Will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the Will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

 

Home made wills can lead to expense and stress

Even if a person believes their estate is small and not complex enough to warrant seeking legal advice, what may be thought of as being a cost-saving exercise by doing a home made will, can become extremely expensive and stressful for family members if the home made will requires interpretation by the Court or is invalid.

 

The law is always changing

Continual legislative changes relating to succession law, and the complexities of the tax regime, make it is essential to ensure that estate planning considers not just disposition of a person’s property, but also taxation aspects and asset protection. Home made wills rarely cater for these needs. Estate planning should also include consideration of assets which may not form part of the estate, such as superannuation or assets held as joint tenants. Seeking expert estate planning legal advice ensures that a person’s wishes are properly considered and can be put into effect.

 

Estate planning is much more than just making your Will

When undertaking estate planning, consideration should be given to the possibility of legal incapacity before death due to accident, illness or age. Putting arrangements in place for a person or persons to undertake financial and personal/health matters on your behalf via an Enduring Power of Attorney can save your family anxiety and money by avoiding an application to appoint an administrator, should loss of capacity occur.

 

Will-kit costs an estate tens of thousands of dollars

An article in the Sunday Mail on 15 October 2017 referred to a recent Queensland case involving a Will kit with hand-written attachments which required a Court hearing to accept the Will and grant probate. The risks of home made wills using these kits are highlighted in this article. It comments that it is anticipated further hearings will be required to enable the estate assets to be distributed suggesting that the legal proceedings could end up costing the estate tens of thousands of dollars!

 

Cheap will may mean expensive estate administration

Avoid falling into the trap of choosing the cheap option of a home made will which may result in your estate administration being costly and difficult. As Master Sanderson commented in Gray v Gray [2013] WASC 387 [1]:

[where] “the Will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. All of this could have been avoided if the testator had consulted a lawyer and signed off on a Will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a Will is money well spent.”

 

Call Bell Legal for help with your Will and Estate Plan

For expert advice on any estate planning or estate administration matter, please contact a member of our experienced team at Bell Legal Group on (07) 5597 3366 or email law@belllegal.com.au.

 

Disclaimer

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice.