You have decided to prepare a Will but are reluctant to pay the amount lawyers charge to have one prepared. While it may appear to be cheaper to use a Will kit from the post office, there are a lot of issues that come from DIY Will kits that may end up costing your estate later on down the track.
In the case of Rogers v Rogers Young [2016] WASC 208 [1], Master Sanderson of the WA Supreme Court said:
“On numerous occasions when dealing with so-called home made wills, I have observed they are a curse. Home made wills which utilise what is sometimes known as a ‘Will Kit’ are not much better. This case proves the point. The disposition effected by the Will is not complicated and no doubt the testator [Will-maker] had clearly in mind what she intended to achieve. But the way the Will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the Will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”
So what are you actually paying for when you have a Will prepared by a lawyer?
Legal advice
One of the pitfalls with DIY Wills, is that you do not receive advice from a lawyer to appropriately construct your estate plan. A Will is a very individual document and Wills can vary depending on your personal and financial circumstances. Having a lawyer provide legal advice at the time of taking your instructions means that your individual circumstances are considered and taken into account. Having a business, trust or company may require certain clauses be put into your Will to ensure those entities are taken care of upon your death. If you wish to leave someone out of your Will so they do not receive an inheritance from your estate, it is important for you to receive the appropriate advice to protect your estate from any potential claims.
A gift that failed
We at Lynn & Brown once dealt with an estate where the Will maker had used a DIY Will. The Will maker did not have any children but was very close to one of her nephews. When the Will maker made her Will about three years before she died, her major asset was a Westpac Bank account. In her Will, she left her Westpac Bank account, as a specific gift, to the nephew she was close to. The balance of her estate was left to her other nephews and nieces. A few years after making her Will she changed all her banking to Bank West. Therefore, when the Will maker died she did not have the Westpac bank account and therefore the gift failed and the nephew she was close to received nothing and the other nephews and nieces received the bank account. This was clearly not what was intended when she created the DIY will.
The Will is prepared correctly
A Will is a legal document and when a DIY Will is prepared it may fail to comply with basic legal formalities. The Wills Act 1970 sets out the requirements for a valid Will. Whilst DIY Wills outline the instructions that are to be followed, in many cases these instructions are not followed correctly which may mean the Will is invalid.
The Will is executed correctly
For a Will to be valid it is required to be executed, or signed, in a particular way. This includes each page being signed by the Will maker, along with two witnesses who are over the age of 18 years. The Will maker and the two witnesses must all be present at the same time.
Storage of the executed Will
Once you have signed your Will with Lynn & Brown Lawyers, we offer to store your Will in our safe storage facility. This means that you never have to worry about your Will being lost or damaged. We will write to your executors advising them that we are storing your original Will and when you pass away, they will need to attend our office with your death certificate so we are able to release the Will to them.
For your own piece of mind and to ensure your Will is prepared correctly, we recommend that a DIY Will kit is not used, and instead your Will is prepared by a lawyer.
About the authors:
Renee Ransom is a Paralegal at Lynn & Brown Lawyers. She works alongside the Wills & Estates Team and is currently completing a Bachelor of Law at Charles Darwin University online. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
Interested in learning more? Explore our estate planning articles and our fact sheets.
