Attwood Marshall Lawyers Wills and Estate Lawyer, Natalie Comerford, discusses DIY Will Kits and why you should be wary of the alluring DIY Will offer online and at your local Post Office.
What is a “DIY Will”?
The term DIY is an acronym and when applied to the context of Wills, it simply means a “do it yourself” Will; where you write your own Will and do not engage a professional to draft it for you. A DIY or ‘Bunnings’ Will is a document that is made by someone themselves, providing written instructions about how to dispose of and distribute their assets after they pass away.
We are living in a day and age where everyone loves affordable DIY options. From DIY home renovations to DIY medical procedures such as DIY braces (yes, that’s a trend!), there’s no limit as to the resources you can find online to try to arm yourself with the knowledge and tools to attempt to do something yourself. In many cases, it seems quite simple and straightforward, however DIY projects can be disastrous and cost you a lot more in the long run.
Estate planning and drafting your Will should not be taken lightly. Without a thorough understanding of the legal principles that apply to estate planning, and knowing how to protect yourself and your estate, you should avoid the temptation of the DIY Will and engage a professional to ensure your wishes are drafted properly and your Will is legally binding.
If a Will is not written, signed, and witnessed in a certain way, they can be wrought with danger for those that don’t have any experience in this field.
The lure of the DIY Will
There are many personal circumstances that attract people to taking the DIY path, including the promise that the process is cheap, quick, and easy, and you are “backed by experience”.
These services promise you that you can create your online Will in as little as 30 minutes, and the final product will be legally valid. Although DIY Wills are advertised as legally valid, people need to be extremely careful of what “legally valid” means.
Paper-based Wills – DIY Will Kits
Traditionally – paper DIY Will kits can be purchased from your local post office or a newsagency. There are options for singles or couples. These DIY Wills look quite official and the testator (the person making the document) simply needs to fill in the blanks.
After completing the document, it recommends you store it in a safe place, and simply set and forget it.
People tend to think what they can purchase at the post office and complete themselves is the same product as what they are getting if they engage a professional to draft their Will. That is simply not the case; and a Will should never be set and left to forget. Most people require more than a simple Will and these kits do not take into consideration your personal family situation. Every family is different and there is no “fits all” solution when it comes to doing your Will.
Online Wills
There has been a significant rise in online DIY Wills. With so many options available on the internet, many organisations are now heavily marketing these products. Despite the promises they make, online Wills are the same as paper DIY Will kits, just in an electronic version.
The process seems relatively straightforward. You complete the online form, the service usually allows you to make unlimited changes for a period of time, you are asked to tick a box to acknowledge you have read and understood the terms and conditions, and you are asked to pay a nominal fee.
Once completed, you are then required to print and sign the document and are left feeling that your legal affairs are in order and your estate is safe and secure. Buyer beware; it isn’t that simple.
What can go wrong when making a DIY Will
There are so many things that can go wrong when doing a DIY Will. To start with, in Australia there are some minimum legal requirements that need to be met when creating a Will.
These include:
- Making sure your Will revokes all previous Wills;
- Giving consideration to, and appointing the right personal representative or an executor;
- Giving consideration to your asset pool. Some assets come into the Will and some assets fall outside. What this means is not all your assets can necessarily be gifted in your Will. Things like your superannuation, companies and family trusts, and jointly owned property need to be dealt with separately.
- Avoiding ambiguous language. Care needs to be taken in construction of the Will to avoid ambiguity which is an easy trap to fall into; and
- Executing the Will correctly. This is where a lot of people come unstuck. It’s not uncommon for people to forget to sign one or multiple pages of their Will, or not have the correct number of witnesses sign where required (or in the same pen and at the same time, etc.).
How and when a Will is executed is a vital part of the process. What we find is a lot of people do not execute the document correctly and it is not until the testator has passed away that it is then discovered that the Will has been signed incorrectly or in some cases not at all.
This is when that initial savings of the DIY Will come back to haunt your estate and your family you leave behind. It can be very costly for the estate to sort out the issues that arise and ultimately what could have cost a few hundred dollars upfront, ends up costing the estate tens of thousands of dollars, not to mention the emotional turmoil on the family, and the time and delay that inevitably occurs in administering the estate.
Other factors to consider when writing your Will
- Ensure you adequately provide for certain family members to mitigate the risk of your Will being contested. An experienced estate planning lawyer can implement strategies to support your plan, and help you understand your obligations to anyone you need to provide for.
Read more: Contesting a Will by bringing a Family Provision Application
- Reduce the risk of undue influence or unconscionable conduct. A Will should be a true reflection of your intentions and emulate what you want to happen to your assets when you die. When you have your Will completed by an estate planning lawyer, they can help protect you from undue influence by a third party and ensure that your Will reflects your intentions and wishes. The risk of this happening if you choose to complete a DIY Will increases as you do not have a professional looking out for your best interests.
Read more: Undue influence and unconscionable conduct in Will-making is elder abuse and is a serious issue
- Testamentary capacity; to be able to legally make your Will, you need to have the testamentary capacity to do so. Will challenges are very common when someone has created a DIY Will and their family questions the validity of the document. An experienced estate planning lawyer will always follow a process to ensure their client has testamentary capacity and that they understand the nature and extent of their estate. By having an estate planning lawyer assist you with drafting your Will, if it is challenged down the track, there will be trusted witnesses and a documented process and history notes that a court will refer to in order to establish that the Will is valid and the Will-maker had testamentary capacity when executing their Will.
Read more: Challenging a Will based on mental capacity
Attwood Marshall Lawyers can help you plan, protect, and preserve your wishes
The most important take away message is that a DIY Will cannot afford you and your estate the protection that a professionally prepared Will can. If you are going to take the DIY option, you must be aware of what you are risking.
As a leading estate planning firm, Attwood Marshall Lawyers take a holistic approach to your estate planning needs. Your documents will be tailor-made to suit your unique circumstances and preferences and will be prepared by an experienced lawyer who practices exclusively in the area of Wills and Estate Planning.
To discuss your estate planning needs or take advantage of our free 30-minute estate planning review, contact Wills and Estates Department Manager Donna Tolley on direct line (07) 5506 8241, email dtolley@attwoodmarshall.com.au, or free call 1800 621 071 any time. You can also book an appointment online at your convenience via our online booking app.
Read more about estate planning and DIY Wills:
- The battle over Bathurst 1000 Legend’s Legacy – Peter Brock’s invalid DIY Will
- Your Estate Planning Checklist to help you get organised in 2021
- Five reasons you need to have a Will and Enduring Power of Attorney
- Don’t blindly trust the Public Trustee – there are alternative options available
- There’s no such thing as a free Will – Beware of the Public Trust Office!
