Fiona Fagan writes about the expense and stress you may be leaving behind when you opt for a DIY Will kit.
Tindall Gask Bentley Wills and Estates lawyer Fiona Fagan writes about the expense and stress you may be leaving behind when you opt for a DIY Will kit.
Saving a few dollars by avoiding going to a lawyer to prepare your will may be very expensive and stressful for your loved ones when you are gone.
There are a number of traps that people preparing their own will can fall into. These traps result in increased legal fees for your estate. These fees often far outweigh the cost of seeing a lawyer to prepare your will.
Here are just a few examples of where the DIY Will Kit can fall down:
Where oh where are the witnesses?
More often than not the DIY Will Kit is witnessed by your next door neighbours or work colleagues, as the will shouldn’t be witnessed by a beneficiary or executor. At the time those people are ever present in your life popping over to borrow some flour or to share a BBQ. Twenty years down the track locating Susie Smith, Nurse and John Smith, Labourer can be very problematic. The Court usually requires that a home made will must be accompanied by an Affidavit of Due Execution to be completed by at least one of the witnesses to the will. This document in itself will cost to have drafted but the real problem will be finding Susie and John who could have moved on years before. You have to prove to the Court that you have exhausted all searches for the witnesses which again will incur further legal fees.
Not giving it all away?
In some cases testators making a will using a DIY will kit may inadvertently create a partial intestacy by not gifting everything that they own. An example of this was an elderly man who was very close to his daughter who had cared for him, the five other siblings had no contact with the father for twenty something years. He very generously left ‘my car, my home and all my bank accounts’ to his daughter. Unfortunately he made no mention of his furniture and clothing and so died without gifting them to anyone. These items pass on intestacy, as though he didn’t make a will for this share of his estate. This meant that all the siblings were entitled to a share of the $2,000 of furniture and clothing. The daughter as executor had to locate each sibling and distribute their share to them. The cost of such an exercise far outweighed the value of the furniture and clothing but was required due to the father’s minor indiscretion. It could also alert estranged siblings of a parent’s passing and trigger them to make a claim on the estate as they had been left out of the will.
Who is WR Smith, William Robert Smith and Bill Smith?
Over time people develop nicknames, go under aliases or drop their middle names. Their assets are held in a number of variations of the name they were given at birth. This can be problematic for an executor trying to call in the assets. To make this more difficult for the executor a testator making a home made will may sign their will as Bill Smith. The testator then has to prove to the Court that Bill Smith is in fact William Robert Smith and WR Smith. Again this process is costly for the estate and can delay the calling in of the assets.
Where have you been keeping this will?
Storage of the will and the condition it is found in is also very important to the Court. Making your own will also means that you are responsible for the storage of the will and ensuring your executor knows where it is stored. Often the will can be discarded when cleaning up a premise, meaning that the testator will die intestate. Proving a copy of the will is a true copy of the will incurs considerable legal fees as well. But most importantly the Court are concerned about any marking on the will including removed staples or paper clip marks and any amendments made to the will that aren’t initialled by the testator and the witnesses. If there are any obliterations on the original will an Affidavit of Plight and Condition will have to be filed with any application for probate, again increasing legal fees. Executing your will with a lawyer means that the will can be stored in safe custody and will ensure no amendments are made.
Your will is your loved ones map and key to your finances once you have passed on. If the map can’t take them to the treasure or open the chest when they find it, the legal implications are far reaching and can diminish your estate.
Contact your nearest TGB office to organise your Will.
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.