5 reasons an ‘At Home Will Kit’ is a bad idea
It may seem a little self-serving having a lawyer tell you not to draft your own Will especially as a home Will kit can be a lot cheaper than one prepared by a lawyer. However having a Will prepared correctly is important as the smallest mistake can cost your loved ones a lot more than the price of a Will prepared by a lawyer. Below are five reasons why you should not complete an ‘At Home Will Kit’ and should contact Johnston Withers Lawyers to prepare your Will.
1. Specific requirements
In order for a Will to be a valid document there are specific requirements which a lay person would not be expected to know. These include having two independent witnesses sign and date your Will whilst in your presence.
The Probate Registry also has requirements before a Will can be admitted to probate. These include ensuring the Will is intact with no rips or creases. The Probate Registry will look at handwriting to ensure it is uniform and may raise questions if, for example, a different colour pen is used by each of the witnesses. The Probate Registry may require additional paperwork to be completed if there are any issues with the Will such as an Executor’s name being spelt wrong or if you have not used your full legal name.
2. Obtaining specialist advice
The process of preparing your succession planning is much more than writing and signing a Will. When you meet with a solicitor they will obtain detailed information from you as to your assets and liabilities and personal circumstances. Please see our article on What to consider when preparing your will for more information as to this process.
During these discussions a solicitor will explain what will ordinarily occur to your assets on your passing. If this is not consistent with your wishes we can offer suggestions as to asset restructuring. For example, if you owned a house as joint tenants with your partner and did not want the house to pass automatically to them upon your death but wanted your interest to go to your children, we can discuss options including severing the tenancy with you.
Further at this appointment you will receive advice such as what will happen to your Superannuation when you die as your Superannuation does not automatically form part of your Estate and follow your Will.
3. Tailor to suit your circumstances
Many of the ‘At Home Will Kits’ require you to enter information into prepopulated fields. They do not allow you to personalise it to suit your wishes. For example it may allow you to leave a gift to your grandchildren but the template may not suggest or allow for you to make this conditional upon them reaching a particular age.
Another common mistake we see with At Home Wills Kits is that the template does not always allow you to record alternatives if the intended beneficiary or Executor does not survive you. For example if you were to leave your Estate to your three children but one does not survive you, a well drafted Will should provide for what happens to this child’s share, such as whether it should be divided between the two surviving children or whether it should be passed to the deceased’s child or children (your grandchildren).
We can talk through your wishes and offer you suggestions that perhaps you had not previously considered and draft your Will to ensure that there is no ambiguity or confusion as to your wishes.
4. Acting Independently – We can attest to your wishes
If your Will is challenged under an Inheritance Family Provision Claim one of the factors a Court will take into consideration is the wishes of the Testator (Will maker) and the relationship they had with the claimant.
When you speak with a solicitor they will obtain information as to your relationship with family members who may bring a claim under the Inheritance (Family Provision) Act 1972 (SA). If necessary, the solicitor will be able to give independent evidence in Court attesting to your wishes and your instructions as to your relationship with the claimant.
5. We can attest to your capacity
A Will may be challenged on the basis that the Testator did not have the requisite capacity to make a Will. If the Court finds that the Testator did not have capacity, then the document cannot be admitted to Probate. If this occurs and the Testator had an older valid Will, then this will be the Testator’s last Will and testament which should be admitted to probate. If the Testator did not have an earlier Will then they will be found to have died intestate. Please see our article on Dying without a Will for more information.
Mental capacity to make a Will is not a medical test but a legal one. Through the process of obtaining information, preparing and then signing your Will a solicitor will assess your capacity. If your Will is challenged in Court the solicitor will be able to provide independent evidence as to your capacity.
Johnston Withers Lawyers: Experienced Lawyers in Wills and Estate Planning
The process of preparing a Will may feel daunting but it is important that it is done properly. Johnston Withers Lawyers are experienced in preparing Wills. If you would like advice from one of our wills and estate lawyers, please contact Anthony Mauriello on (08) 8231 1110, or get in touch online.