The Perils of the Legal Will Kit

Adelaide lawyer Mal Byrne writes about the risks that Will Kits pose to your estate.

On the surface, legal Will kits look attractive.  For a fraction of the cost of instructing a lawyer to prepare a Will or even for free in some cases, you can do it yourself.  However, while you might be saving yourself money in the short term by using a Will kit, the long term costs to your estate may be many times greater not to mention the additional stress that will be placed on your executor.

There are three main reasons why you are better off instructing a lawyer to prepare your Will than use a kit:

1. While Will kits come with instructions, people invariably make errors in completing the document. They either do not read the instructions properly or misunderstand the instructions and errors occur.  Common errors in Will kit Wills include the failure to appoint an executor, failure to properly describe gifts, failure to make a gift over and in particular, failure to properly sign the Will.  The South Australian Wills Act requires that the testator (person making the Will) must sign the Will first in the presence of two witnesses.  The two witnesses must be present at the same time that the testator signs the Will and must sign the Will themselves as well as inserting their name and address.

If any of the above errors occur, the Will is at risk of failing entirely.  In any event, the estate is going to be put to great expense and your executor to a lot of trouble in trying to have the Will accepted.

2. Even where a Will Kit Will appears to have been properly signed, in that the three signatures appear in the right places on the Will, the Supreme Court Probate registry will always look at will kits with great care. Generally, as will kits often don’t have the correct signing clause the Registry will not accept that Will Kit Wills have been properly signed without getting a sworn statement from one of the two witnesses to the Will certifying that they were present on the date that the Will was signed and that they witnessed the testator’s signature and then signed the Wills themselves all at the same time.

This can present great difficulties, particularly if one or both of the witnesses are dead which can often be the case if there is a long time gap between the making of the Will and the death of the testator. Even if the witnesses are still alive, they could be overseas or interstate or may have disappeared and the executor of the estate can be put to great trouble and expense in trying to not only locate the witnesses, but arrange for witnesses to provide the sworn document concerned.

3. All legal Will kits do is provide you with a framework for drafting a Will with instructions.  When you see a lawyer, you will not only receive advice on the Will itself, but estate planning advice, advice on other legal documents that might need to be prepared such as Enduring Powers of Attorney and Guardianship and advice on the risks that your Will might be challenged under the Inheritance (Family Provision) Act.

If you want to take the Will Kit route, you need to decide whether the couple of hundred dollars that you might save is worth the problems and expense which you may be inflicting on your estate on your death.  You might say, ‘he is a lawyer, he would say that, wouldn’t he’, but why take the risk?  Making a Will is important and it needs to be done properly.

Contact your nearest TGB office for further information or start your Will online today. 

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.