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DIY Wills - Will you take the risk?

5 August, 2020

A Will is one of the most important legal documents you will sign in your lifetime. A properly drafted Will gives you the comfort and peace of mind that your estate will be distributed in accordance with your wishes. A properly drafted Will also makes the task of distributing your estate easier for your loved ones. While a DIY Will may appear to be a cheap and easy option, they can be costly in the long-term.

Common problems associated with DIY Wills  

  1. Dealing with non-estate assets – A Will can only deal with assets you actually own at the date of your death. Many people do not realise that life insurance and superannuation do not automatically form part of your estate. There is a risk when making a DIY Will that you may inadvertently exclude a beneficiary by attempting to deal with an asset you cannot deal with through your Will. The exclusion of a beneficiary in turn could potentially lead to costly and lengthy legal proceedings.
  2. Failing to adhere to the required formalities – A Will is a legal document and as such there are a number of formalities that should be complied with so as to ensure its validity. Even the most minor of mistakes have the potential to not only complicate the task of obtaining probate but could potentially raise questions about the validity of the Will itself.
  3. Excluding important provisions – DIY Will templates often contain only basic provisions and often exclude more complex provisions such as those dealing with the guardianship of children and testamentary trusts.
  4. The potential for your words to be misconstrued – The incorrect use of legal terminology or the failure to use such terminology may make your Will a difficult task to interpret for your executor.

An example of the risks associated with DIY Wills is the case of Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415. Australian race car driver Peter Brock died suddenly in 2006. Brock left a number of documents that purported to contain his testamentary wishes.

In 1984 Brock formally executed a Will prepared by a solicitor. In 2003 Brock then partially completed a Will himself using a DIY Will kit. However, Brock only completed part of the DIY Will. He left the sections dealing with his property blank and told his former partner that he trusted her completely and that she could fill out the remaining sections upon his death. In 2006 Brock attempted to complete another DIY Will. However, instead of completing the Will himself he dictated its terms to his Personal Assistant. During this process Brock’s Personal Assistant expressed concern regarding the complexity of the Will and suggested that Brock see a solicitor. The Will was never formally executed. Lengthy and complex legal proceedings regarding the validity of Brock’s purported Wills followed his death in 2006, proceedings which potentially could have been avoided had a properly drafted and validly executed Will been in place.

While a DIY Will may be initially cheaper than engaging a lawyer to prepare a Will, the consequences of a poorly drafted or invalid Will may prove costly in the longer term for your loved ones. If you need assistance with your estate planning, contact Hale Legal’s experienced estate planning lawyers. 

 

 

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