Whilst homemade wills and ‘will kits’ promise a free or cheap and easy way of giving effect to your testamentary wishes, they must be treated very cautiously.
In many cases homemade Wills are not completed or signed properly, raising real questions as to their validity, resulting in significant delays and costs in trying to rectify the errors with the Probate Office. In some cases, homemade Wills result in very expensive litigation where people do not all agree that the will should be upheld as a result of the errors.
The Supreme Court has the power to admit wills that do not meet all of the formal requirements set out in the Wills Act provided sufficient evidence is provided. This however is always a very costly exercise for your executor and results in significant delays in your beneficiaries receiving their benefit under your will.
Some common examples of how homemade wills or ‘will kits’ come unstuck are:
- Signing the will:
– with no witness;
– in front of only one witness; or
– in front of two witnesses but at different times and not in the presence of the other witness
- Not dating the will
- Writing out the will in different ink – causing doubt as to whether the words or changes in different ink were added at a later time
- Signing the will in one ink and your witnesses signing in a different ink– causing doubts as to whether the will was witnessed properly
- Adding content to the will after its initial execution causing serious questions as to whether those inclusions ought to be incorporated into the will
- Ambiguous wording that needs the Court to intervene to determine its meaning
- Creating partial intestacies, for example by gifting a number of assets but not providing a direction as to the residue of your estate
- Not appointing an executor
- Tampering with the will, for example removing a staple to copy the will then re-stapling the will or using a paper clip to attach another document to the will
One of the other dangers of doing a homemade will or completing a ‘will ‘kit’ is that you miss out on expert legal advice.
In many cases, people don’t properly understand what assets are capable of being gifted under the terms of your will. For example, many people who make homemade wills improperly gift jointly owned property, property that is not theirs or property that belongs to a family trust or company.
It is also important to complete your will with an understanding of how your superannuation fits in. This is particularly important when superannuation and any accompanying death benefit is becoming the biggest or one of the biggest assets accumulated by people during their lifetime.
When updating your will, it is also important to consider a power of attorney and an advance care directive to enable someone to make legal/financial decisions (power of attorney) or medical/life style decisions (advance card directive) for you during your life if you are mentally incapacitated.
To find out more, please contact our Will and Estates specialists.
Written by Emma Wilkinson, April 2018.