Friday 29th April 2022 from 9am

Hours
Minutes
Seconds
LIVE ON RADIO 4CRB:
Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

The dangers of Online Wills – don’t be fooled by the promises of Online Will companies

News

Online Wills have become increasingly popular, but buyers should beware; what may seem like a cheap and easy alternative to an otherwise traditional service can be fraught with hidden dangers, explains Attwood Marshall Lawyers Legal Practice Director Jeff Garrett.

We live in a world where so much information is available instantly at our fingertips “online”. However, when it comes to preparing and signing your Will, trading quality for cost-savings or convenience won’t necessarily serve you well.

In Australia, the popularity of online Will services has surged in recent times, heavily marketed through various channels such as social media, email campaigns, and partnerships with charities and other organisations. Some individuals might even encounter promotional materials distributed alongside their meal delivery service.  

Online Will businesses promote the fact that their products are “quick,” “easy,” “convenient,” legally binding,” and “cheap.” They promote themselves as an alternative to getting your Will drafted by a professional lawyer experienced in Succession Law and estate planning.

But are online Wills all they’re cracked up to be?

Many people underestimate their estate planning needs and do not understand that a “simple Will” won’t suit their circumstances. Unfortunately, online Will businesses fail to adequately communicate this reality.

We often hear clients say, “I only need a simple Will; I don’t have much to leave, and it’s straightforward who I want to give everything to.”

People often assume they only have a modest estate and that their Will requires simple conditions to pass it to their family or next of kin (or a charity).

However, the opposite is usually the case, with many people underestimating their assets, the complexities of their family make-up, and their obligations to leave adequate provision for certain people in their life.

Is it worth the shortcut?

More than half of Australians do not have a Will, despite the importance of planning ahead and setting out your wishes to avoid leaving behind a complicated legal battle for your loved ones.

A survey by comparison site Finder revealed some of the main reasons why individuals don’t have a Will, with 4 per cent of respondents saying they didn’t want one, 14 per cent thinking they didn’t have enough assets, and 34 per cent had not “got around to it yet.”

These are the people that online Will companies are targeting.

But having a Will professionally drafted isn’t as time-consuming or difficult as these online services suggest. Many clients walk away from our appointments shocked at how easy the process can be. They lament that they should have gotten their Will drafted or updated years ago.

Hindsight often serves as a profound teacher, however, in estate planning, hindsight can’t guide us once we’re gone. That’s why it’s crucial to carefully consider and plan for the future now, ensuring that our assets and wishes are managed and protected according to our intentions, and not left to chance.

The purpose of your Will is to:

    • Minimise the risk of litigation and legal costs in your estate and maximise the benefit for your intended beneficiaries;
    • Provide clear directions to your executor to carry out your wishes and define their duties, including how you want your body disposed of and any wishes you have for your funeral arrangements;
    • Protect your assets and beneficiaries from ‘predators and creditors,’ ensuring your hard-won assets go to your loved ones or your chosen beneficiaries; and to
    • Ensure the orderly and most tax-effective transfer and distribution of your assets to your beneficiaries after you die.

    An online Will platform uses a prefabricated questionnaire to guide the user through a sequence of questions and produces a completed document at the end of the process that must be executed to be legally binding.

    No cookie-cutter approach or template will be able to cater to everyone’s unique circumstances, no matter how simple the individual may believe their estate is.

    Do you have a blended family, perhaps you are estranged from a relative, or do you have a mix of jointly held assets as well as solely owned assets? What about who you should appoint as your executors? These issues cannot possibly be discussed and advised by an algorithm asking prefab questions!

    Online products cannot properly consider each person’s unique overall circumstances, especially regarding what assets someone owns, how those assets are held, and the very different definitions of the “modern family” today.

    The disclaimer that appears on most online Will websites should be a red flag to anyone considering going down this path:

    “XXX is a technology platform that allows you to create your own estate planning solutions using our forms and other information. XXX is not a law firm and does not provide legal, financial, taxation or other advice. If you are unsure whether our estate planning solutions are suitable for your personal circumstances, legal advice should be sought from a law firm.”

    While many of these companies say a lawyer will “review” any Will that their platform produces, on closer inspection of one website’s terms and conditions, the review is procedural and mainly in place to make sure that the answers provided by the Will-maker correspond to the right questions.

    The terms state the reviewer won’t consider the Will-maker’s specific personal circumstances, nor the legal validity of gifts, the Will-maker’s family provision obligations, the feasibility of their wishes, child guardianship, trusts or how the Will interacts with superannuation, trusts or companies.

    Consumer advocacy group Choice recently had experts assess some of the online Will products in the Australian market. They found that many didn’t provide any information on taxation, nor clear instructions on when a Will-maker should seek expert advice.

    There are consequences if you get it wrong

    It’s important to remember that the initially drafted electronic version of an online Will is not a legally binding document. It must then be printed, signed, and witnessed correctly. Only when the document is executed correctly will it be considered valid.

    This is often the stage where many people get it wrong and fail to execute the document by the law. An original document must be signed by the testator and two adult witnesses at the same time, using the same pen (in most states). Generally, the witnesses should not be beneficiaries or executors named in the Will.

    If your online Will is one of the high percentage of Wills deemed invalid, here are some of the consequences that could follow:

      • If there is no earlier Will to reference, then the rules of intestacy may apply, potentially distributing assets against your wishes,
      • If an earlier Will exists, it may be referenced even if it’s outdated, contradicting your recent wishes,
      • In the event of an ambiguous Will, costly legal battles over interpretation can often ensue,
      • If provisions for eligible claimants are neglected, there is a heightened risk of costly legal challenges from those who feel left out,
      • With a lack of safeguards against undue influence by others, online Wills are rife for challenge (compared to engaging a lawyer who will document your capacity, take extensive file notes, and help defend the Will if it is challenged),
      • Online Wills can’t account for legalities around certain assets and may mistakenly gift non-estate assets, resulting in failed bequeaths.


      Why it’s worth your time and money to engage a lawyer

      Cost savings is one of the biggest drawcards for people opting to do their Will online. Most online Wills start from around $160 per person, approximately half of what you would spend getting a simple Will drafted by an experienced estate planning lawyer.

      You may save a couple of hundred dollars on your Will by doing it yourself online. Still, you do so by sacrificing legal advice about your unique situation and taking the risk that your Will may not be upheld.

      When a Will is not drafted correctly, it often leads to litigation. When a Will gets contested or challenged, the costs associated with estate litigation can be in the tens of thousands or even hundreds of thousands of dollars, in addition to the emotional toll litigation will take on those left behind.

      Why take the risk for a modest upfront saving of only a couple hundred dollars?

      When an estate planning lawyer meets with a client to take instructions for their Will, the lawyer must collect enough information to fully understand who’s who in the family, what assets the individual owns, whether any assets are held in trust or jointly with another party, and what the intentions of the testator are.

      From this information, an experienced estate planning lawyer can formulate a strategy to suit the individual and ensure their wishes can be fulfilled, while also advising on the Will-maker’s duties for family provision.

      They can also advise on assets outside a client’s estate that require additional planning, including superannuation, life insurance policies, jointly owned real estate and bank accounts, companies, and assets held in family trusts. An online Will generally neglects these assets and the appropriate planning required.

      Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes

      Don’t risk your family’s future and the wealth you have spent your lifetime building. There is no substitute for getting professional advice on estate planning to ensure your most basic legal affairs are in order and your family is protected long after you are gone.

      Attwood Marshall Lawyers is an experienced estate planning law firm with one of Australia’s most prominent and accomplished Wills and Estates teams. We take a holistic approach to estate planning to ensure our clients get a personalised service that considers their unique circumstances and specific wishes.

      For a Will review or to discuss our estate planning services, please contact our Wills and Estates Department Manager Donna Tolley directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au

      You can also book online instantly by clicking here and booking through our website.

      Share this article

      Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

      Jeff Garrett

      Legal Practice Director
      Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

      Contact the author

      Disclaimer
      The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

      Brisbane Employment Law

      Employment Law Sydney

      Gold Coast Employment Law

      Defamation Law

      Employment Law

      Download a Brochure

      Please enter your details below and
      a link will be emailed to you
      Download Form

      Compensation Law

      Select your state