It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.
So, is it really a good idea to write your own Will?
Why you need a valid Will
The sole purpose of writing a Will is that you can direct where your assets go when you pass away.
If you have a valid Will your executor applies through the probate process and distributes your estate in accordance with what you have written in your Will. If you hold joint property with your spouse probate is not usually required unless substantial assets are held in your own name.
There are many common situations however where a valid Will is required to properly distribute your estate and look after your family and loved ones.
If you have a Will that is deemed not valid by the probate court then your estate will most likely be exposed to delay in distributing your estate, increased legal and court costs and perhaps resulting in financial hardship and emotional anguish for your family.
Most people think that their situation is simple and that a DIY Will is enough, but consider the following situations and whether they may apply to you or someone you know.
Your home-made Will is lost or cannot be found
When a lawyer prepares a Will for you they may offer to hold the Will after signing in their safe custody and provide you with copies or they may advise you of other services or methods you can use to safely store your Will.
If you take the original Will the lawyer may keep properly certified copies of the original Will or an electronic copy of your Will. If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.
If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.
Your hand-written Will is not signed correctly
There are very strict requirements for the signing and witnessing of Wills, if your Will is not signed correctly or is not witnessed properly it may be invalid.
If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.
Once your Will is made, even writing on it later or making any changes may invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.
You own a business
If you own a business it is likely that the business will continue to operate after you die. You will need to consider and plan for the succession, sale or dissolution of your business following your death including having a validly appointed executor to effect such succession plan. You can achieve this in a valid Will.
If you do not have a valid Will that appoints a person to be responsible for the continued operation of the business and to effect a succession plan, there may be ongoing expenses and costs of the business that are not appropriately managed such as rent and staff costs. If there is no one validly appointed to manage these matters appropriately it may cause hardship to your family and detriment to the business and consequently may also effect the other assets of your estate.
You and your partner are not married
If you are in a de facto relationship you may have purchased property together with your de facto spouse in equal (or unequal) shares rather than as joint tenants. You may have done this for a number of reasons including, for example, because you both have children from a previous relationship.
Without a valid Will your interest or share in the property may not get transferred to either your de facto partner or your children as a matter of course and the property may be at risk of claims on your estate from other people. If you do not have a valid Will your property cannot be dealt with in the way that you intend and avoid expensive litigation.
Previously made Wills are not automatically revoked when you make a new Will
You may have made a Will when you were younger, perhaps leaving all of your estate to your parents, and your circumstances may have changed since that time such as you moving residence and commencing a relationship and having children. Your previous Will made when you were younger may not be automatically revoked by the making of a new Will that takes into consideration your new circumstances.
If your new Will is invalid your previous Will may be relied upon and your estate may therefore go to your parents and be distributed pursuant to the terms of your previous Will and not to your new family as you intended in your new Will. In these circumstances your partner and your children may need to initiate lengthy and costly court proceedings in order for them to receive anything from your estate.
You are married but hold property solely in your name
You may have bought property when you were single or owned the property from a previous marriage or inherited it from your parents.
If you have property in your sole name and you intend that upon your death such property be transferred to your spouse, without a valid Will and no person validly appointed to deal with your estate, there may be a number of different people who are eligible to apply to be appointed by the Court as the administrator of your estate. Such person may not necessarily deal with your property and estate in the way that you want and your spouse may be required to be involved in lengthy and costly court proceedings in order to effect the transfer of the property to them as you intended.
If you leave your superannuation in your DIY Will
Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.
Whilst you can provide in your Will that your estate be given to whoever you would like there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.
Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.
Again the release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.
Lawyers are trained to write valid Wills
By engaging a lawyer to assist you in the preparation of your Will, they will:
- take into account the strict legal requirements for a Will to be considered valid by a court in the jurisdiction which you live; and
- also consider your particular situation and include such specific terms and clauses you need in your Will depending on your particular circumstances.
Your lawyer can also help plan other aspects of your estate such as whether you need to appoint a guardian for your children, a trustee to run your business or whether an elderly relative needs to remain in your home after you are gone and a myriad of other life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice, please contact us to arrange an Introductory Consultation on (08) 9335 9877 or email firstname.lastname@example.org