Your will is one of the most important documents you will have before you pass away. It will provide your loved ones with directions as to how to spend your money after you die.

With an abundance of online resources providing DIY will kits, it is easy to be misled into thinking you can prepare your own will without the involvement of lawyers. However, DIY Will Kits can end up more costly than having a lawyer prepare your will.

What is a DIY Will?

A DIY Will is a term that covers any wills that are not prepared by a law firm. A DIY Will can include a document that is written (i.e.. typed or handwritten) by someone with the intention of it being a will. A DIY will can also include a will kit purchased at a newsagent, post office or online.

Can a DIY Will be valid?

In theory, a DIY Will may be considered a valid will by the court. Any document that is intended to be a will may be accepted by the court as the will’s maker’s will, provided it meets the minimum requirements of:

  • the will maker is an adult;
  • the will is in writing;
  • if the will maker has written a previous will, the new will revokes (that is invalidating) all previously made wills;
  • the will is signed and dated by the will maker; and
  • the will maker’s signature was witnessed by 2 people at the time the will maker signed the will. The witnesses should have been over the age of 18 years old and they should not be a beneficiary under the will. The witnesses will also need to be present together at the time the will maker signs their will.

In short, the main problem with a DIY Will, especially a DIY will kit is that it is a set template. Because not everyone in Australia has the same assets and loved ones, there is no one size fits all approach to drafting a will. The more creative a will maker wants to become in gifting their estate, the harder it can be to have a pre-purchased will template accommodating it.

3 Common Problems arising from DIY Wills

For a court to accept a will as valid, there are very strict requirements not only in executing the will but how to preserve the document after it has been signed.

One major benefit lawyers provide is they are aware of the court’s general requirements and know how to execute and store a will.

General problems with DIY wills include:

  • the will not being signed or witnessed properly – if the will maker fails to execute the will and have it witnessed correctly, then it calls into question whether the will maker intended the document to be their last, legally binding will;
  • the will is signed by the will maker and the witnesses in different coloured pens – if the will maker and the witness sign the will in different coloured pens, it could suggest the witness was not present when the will maker signed the will and actually witnessed the signature at a later date;
  • there are unexplained markings on the will (e.g. an ident left from a paperclip or holes in the paper left from a staple) – this may infer that there were other pages (and therefore clauses) to the will that have been improperly omitted.

The problems listed above are not necessarily deal-breakers. A will with any of these issues may still be accepted. However, any of these above issues will throw suspicion as to the validity of the will. Greater effort will be required by executors of the will and the court to determine its validity and it will undoubtedly require the executors to obtain legal advice.

The way the will maker may draft their will may also create uncertainty as to the will maker’s intentions, thus court involvement may be required to determine the proper interpretation of the will. While the will maker will know exactly what is intended by their will, they will not be around to explain their will reasoning after their death. This is why court involvement is generally required for DIY Wills.

What does a lawyer do when drafting your Will?

A lawyer will be able to provide you with a will that meets your specific needs. They can provide you with options for disposing of your estate that a DIY will template may not be able to offer including:

  • giving gifts to grandchildren in the event the will maker’s child dies before the will maker, but the will maker’s child left surviving grandchildren;
  • preventive clauses that will allow a will to remain valid in the event the will maker marries or divorces;
  • a provision considering the will maker’s superannuation in the event a Binding Death Benefit Nomination is not in place at the time of the will maker’s death;
  • an appointment of a guardian of minor children; and
  • dealing with any trusts or shares in corporations held by the will maker.

A lawyer also has experience with drafting wills in a way that the will maker’s intentions are clear and will not require court involvement to clarify the will’s interpretation. A lawyer will:

  • be aware of how to best preserve the will document so to avoid any doubt as to the will’s validity;
  • draft the will in language that will make it easy to understand the will maker’s intentions;
  • meet with the will maker and keep detailed file notes on the will maker’s intentions, which will greatly assist in understanding the will maker’s intention when there is doubt;
  • give the will maker advice on the ramifications of leaving an entitled person out as a beneficiary of a will; and
  • can advise the will maker of what assets cannot be dealt with in a will and how they will be dealt with.

Key Takeaways

Do not be misled into thinking that a DIY Will can sufficiently deal with your assets after you pass away. While it may initially seem that a DIY Will is a much cheaper alternative to a lawyer preparing your will, it is very easy for a DIY Will to be drafted incorrectly or in a way that requires court involvement. Will kit templates may not contain the provisions to deal with more complex situations, and therefore a homemade will may not be the most appropriate and cost-effective method for you to leave your assets as you intend to after you die.

If you have any questions or require assistance with drafting or updating your will in Queensland, please contact the property team at NB Lawyers for more information.

Written by

Kayleigh Swift, Associate

NB Lawyers – Lawyers for Employers
kayleighs@nb-lawyers.com.au
(07) 3876 5111

AND

Chloe Skubis, Graduate Law Clerk

NB Lawyers – Lawyers for Employers
chloes@nb-lawyers.com.au
(07) 3876 5111

About the authors

Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.

Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.

print