It is easy to find a free Will template on the internet.
It is cheap to buy a Will “kit” from a newsagency or post office.
There are even websites that have “data collectors” that input your information and produce a Will for you, without any legal expertise required!
But, 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 to direct who will receive your estate after your death.
The assets that form part of your estate are assets held in your sole name. Assets that are held jointly with another person, in a business, or in a family trust do not form part of your estate and will not be distributed under your Will.
If you have a valid Will, your executor will need to apply to the Supreme Court of Western Australia for a grant of probate, which provides your executor the authority to call in your assets, pay our your debts and expenses, and distribute your estate in accordance with your Will.
If you have a Will that is deemed not valid by the Supreme Court, then your estate will be distributed in accordance with a table set out in section 14 of the Administration Act 1903 (WA). A family member will then apply to the Supreme Court for a grant of letters of administration to fulfill the abovementioned roles of an executor. Such an application involves increased legal fees and may delay in distributing your estate, especially if a person entitled to a share of your estate is a minor.
Most people think that their situation and wishes for distribution of their estate are simple enough for a DIY Will, but consider the following situations and whether they may apply to you.
Your DIY Will is lost or cannot be found
When Frichot Lawyers prepares your Will, you will take the original Will for safekeeping, but we will keep copies of your Will on file. Should you lose or be unable to find the original Will, we may assist your executor in applying for probate of a copy of the Will, provided there is sufficient evidence to rebut the presumption you destroyed your Will with the intention to revoke it.
If you lose or are unable to find your DIY Will and there are no copies of your Will, your executor cannot apply for probate of a copy of the Will. Therefore, your estate will be distributed in accordance with the Administration Act and your family will have the lengthy and costly task of applying for a grant of letters of administration, rather than the simpler grant of probate.
Your DIY Will is not signed correctly
A Will must meet the formal requirements of Part 3 Section 8 of the Wills Act 1970 (WA) as follows:
- It is in writing;
- It is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction, in such place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as the testator’s Will;
- The testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
- The witnesses attest and subscribe the Will in the presence of the testator.
If your Will is not signed correctly or is not witnessed properly, it may be invalid.
The Supreme Court may dispense with the formal signing and witnessing requirements if the Court is satisfied that the Willmaker intended the document to be their Will. However, the executor will need to make a complex application to the Supreme Court for a grant of such Will under Part X of the Wills Act.
Once your Will is made, writing on it or making any changes later may invalidate that Will or render it ineffective, either partially or fully, in dealing with your estate.
You own a business
It is likely that the business will continue to run after you die. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this in a valid Will.
Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.
You and your partner are not married
When you purchased the property together it was bought in equal (or unequal) shares, for example because you both have children from a previous relationship.
Again the property may not get transferred to either your de facto partner or your children as a matter of course. If you do not have a valid Will your property cannot be dealt with in a simple and cost-effective way.
Previously made Wills are not automatically revoked when you make a new DIY Will
When you were young and single, you may have made a Will which leaves your estate to your parents.
After you commenced a relationship and had children, you may have made a new DIY Will, which leaves your estate to your spouse if they survive you, or to your children if your spouse does not survive you.
If your new DIY Will does not state that it revokes your old Will, you may have two valid and conflicting Wills, which may result in lengthy proceedings for the Supreme Court to interpret the Willmaker’s intentions.
Alternatively, if your new DIY Will is found to be invalid, your estate may be left to your parents pursuant to your old Will. Your spouse/children will then need to commence costly proceedings in the Supreme Court for provision from your estate under the Family Provision Act 1972 (WA).
You are married but hold property solely in your name
You may have bought the property when you were single or owned the property from a previous marriage or inherited it from your parents.
If you have no valid Will and no executor to put into effect what you have written in your Will, the property cannot be transferred until the Court appoints an administrator after delay and costs have been incurred.
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 and your loved ones may suffer hardship if the release of funds is delayed.
Lawyers are trained to write valid Wills
When drafting your Will with Frichot Lawyers, we will always:
- take into account the strict legislative requirements for a Will to be considered valid; and
- consider your individual circumstances and tailor your Will to such circumstances.
Your lawyer can also help plan other aspects of your estate, such as appointing a guardian for your minor children, appointing successor controller in relation to your family trusts, or providing rights for a family member to occupy your home after your death.
Please note the above information is general in nature. If you require specific advice regarding your estate and succession matters, please do not hesitate to contact our receptionist on 08 9335 9877 or [email protected] to arrange an Introductory Consultation with one of our experienced Wills and Estates lawyers.
