Law Talks Episode: The hidden risks of “Free” Wills and DIY Wills

Robyn: Good morning and welcome to law talks here on 4CRB. Well, today we’re discussing a topic that affects everyone, even if it’s not something we love to think about; and it’s wills. Specifically, we’re asking the questions, is there really such a thing as a free will and what are the risks of going the DIY route when it comes to planning your estate. Joining us today from Attwood Marshall Lawyers is Legal Practice Director Jeff Garrett. And he’s here to breakdown the common pitfalls. Thanks for being here, Jeff.

Jeff: No problem, Robyn. Good morning.

Robyn: Well, Jeff, we’ve seen the ads for free wills or online wills, DIY will kits, charities offering free wills for donations, public trustee will drives. What do these actually involve and why might they not be as good as they sound?

Jeff: It’s an old chestnut, and people keep doing these free or cheap wills as we call them. But that old saying, you know, there’s no such thing as a free lunch. That’s absolutely true when it comes to so called free wills because there’s a cost always to these things and it just depends what type of will you’re doing. But they all pretty much fall into the same category. These days there’s a plethora of online wills and a lot of them are described as being free. Sometimes they’re offered by charities in conjunction with an online will company. There are the usual do-it-yourself will kits you used to be able to buy them at the newsagent. You get them online now. You know, they’re pretty straightforward. There’s the will drives that the Public Trustee in Queensland and the NSW Trustee and Guardian do in New South Wales, which would be relevant for our area here. Their wills are free, and you know, supposedly you would think that a state government institution like that would be squeaky clean in relation to their motives for offering that. But as we’ll discuss, you know, there’s a hidden cost to that as well.

Probably the biggest problem with so-called free wills, no matter who offers them, is that they’re not properly drafted by an experienced estate planning lawyer. And therein lies the problem. You can forget about, oh I got it for free or whatever. It will ultimately cost you or your family, your beneficiaries after you die. It could cost you hundreds of thousands of dollars and sometimes more to rectify the problems that we see all the time that happen with these so-called free wills, they’re just not done properly.

Robyn: And Jeff, correct me if I’m wrong, but they generally only deal with simple wills, don’t they, which not everybody has? There could be complex blended family scenarios, and those wills really don’t fit that criteria, do they?

Jeff: They don’t. And truth be told, Robyn, there is no such thing as a simple will. Every family, no matter what’s happening, really, a simple will just doesn’t cut it. But you’re right, because families are so diverse these days, and particularly blended families, but just making a will and signing it, it’s very detailed. The requirements are very strict and if you get anything wrong, it’s invalid. And it doesn’t mean that you know all your money could go to the government, but what happens usually is they will go back to the last will that you did that is valid. It’s usually one that was done by a solicitor. So you could find that they go back to the last will you did with a solicitor firm and it’s ten, fifteen years old and no longer reflects what you would like to do.

Robyn: Relevant. So, Jeff, just illustrate for our listeners, how do free wills offered by, say, the public trustee compared to a will drafted by an estate planning lawyer? What are the key differences if we look at them side by side.

Jeff: Well one kick I suppose for the public trustee staff is that they do a lot of these types of wills, and they do have some experience around drafting them, but they’re simple wills and they’re not qualified, the staff that are doing these wills. You don’t see a lawyer. You’re seeing a clerk, or an admin person that has been trained sometimes well sometimes not, to do these sorts of wills. But they’re not lawyers, they’re not estate planning lawyers.

And I can tell you that lawyers who are not experienced in this area, they do simple wills as well. But they don’t know the area. They don’t specialise in it. So, the staff at public trustee offices as I said, not qualified, they’re clerks. They’re not able to give you the advice that you require to do your will properly and to cover all the areas that you might need to for your family and your beneficiaries. It just doesn’t happen.

The other thing that they often do is seek to be appointed as the executor for that estate. And that is a disaster or a potential disaster. It’s well documented all the problems that people have had with the public trustee, but you know, again free will, come in and do this. We’ll do it for you. You can appoint the public trustee as executor if you don’t have someone who you can appoint. They’ll pay for it later.

With the public trustee you may not have as many errors and problems with the validity of the will, so you know, at least they know how to prepare and get it signed and witnessed properly. So, it will be valid, but the query is.

Robyn: Is it adequate?

Jeff: Is it properly drafted? Is it properly going to cover your circumstances for your family? And as you said simple wills just don’t cut it. It’s very rare that a simple will is going to cover all the bases.

And you know most people, if you don’t own a house, you’ve just got a bank account and a car, maybe, well maybe you could get away with it and assuming that you know you have one or two children or, you know, there’s no drama in the family or whatever, you might be able to do something like that. But these days, things are a lot more complicated. People have superannuation, self-managed superannuation funds, companies and trusts and a whole heap of things. So how can you, if you have a couple that comes in the usual simple will says we leave everything to each other and then the kids.

When you’ve got all those entities or you’re a blended family, how is that going to work? So, you know, I’m not unnecessarily, you know, picking on these people or these types of wills. You can go and do whatever you like, but if you want it done properly, and the cost, as I said, could potentially be hundreds of thousands of dollars, sometimes more just for the sake of getting the will done properly. I mean it, to me it’s a no brainer.

Robyn: Jeff, what are some of the most common pitfalls that you see by those who have used these free will services?

Jeff: Well, the first one is the validity of the will as I said before, it’s either not signed correctly, not witnessed correctly, hasn’t been completed, there is language in the will which is ambiguous, which the court has got to come in and fix up later. It just hasn’t been prepared properly. That’s the biggest thing that we see. It’s invalid. It’s not even worth the paper it’s written on.

So, you either go back to a previous will that’s been done, which as I said may not reflect what the deceased wants to happen with their estate, or you die intestate, which means that someone has to apply to be the administrator of your estate. And that causes a whole potential bucket of problems for the family and your beneficiaries that you leave behind. And there’s squabbles about who should be the administrator. And again, the end result is it could cost the estate hundreds of thousands of dollars in relation to that.

Probably a little bit different with the public trust public trustee. It’s going to be a simple will, so it may not be applicable or cover all the bases and they’re not great drafters of wills either, so there could still be ambiguities in the will that a court has to come along and fix.

And probably the biggest problem with them is them being appointed as executor.

Robyn: And Jeff, are there certain life events when people should review and update their will?

Jeff: Yes, it’s usually any life event. So, births, deaths, marriages, divorces. They’re the biggest ones. But if you’ve done a will, anyone that you’ve named in the will, if they die or if they lose capacity, that’s another big one. You know someone who you’ve appointed as your executor, if they’re in the early stages of dementia, you need to change your will. They’re not going to be able to carry out that position.

If you’ve left a gift or a percentage of your estate to someone who passes away, it will go to their children sometimes, but it depends on the wording and the will, so you should do that. A marriage can quite often lead to any wills that you’ve already done being void, so the marriage voids your previous will that you did, unless you did it in contemplation of marriage.

Divorces can also have an impact on certain documents. Any of those main life events you should always go in and update or make a will if you haven’t already got one.

Robyn: And Jeff, if there’s one message you want listeners to take away today about free wills and DIY wills, what is it?

Jeff: Well, the old saying, there’s no such thing as a free will, and that’s absolutely true. Please, please go and see an experienced estate planning lawyer to get your estate planning and your will done.

Robyn: Yeah, from online DIY templates to free wills, more and more people trying to save money by skipping the lawyer, but I think we have learned today that one small mistake in a will could mean big problems for you or your loved ones down the road.

Jeff, thanks for breaking down the common pitfalls of DIY and free wills and what the law actually requires and how you can protect your legacy without leaving behind a legal mess.

Jeff: My pleasure, Robyn. Thank you.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9 o’clock, and if you missed any part of today’s show or you want to share it with someone who might need it, this interview will be available on our website 4crb.com.