It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.
So, 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 so you can direct where your assets go when you pass away. If you have a valid Will your executor applies to the Court for a grant of Probate and can then distribute your estate in accordance with what you have written in your Will. If you hold joint property with your spouse probate is not usually required unless substantial assets are held in your own name.
Where your Will is deemed invalid by the Court, your Estate will be exposed to delays in distributing the assets, increasing legal and court costs, and potential financial hardship and emotional anguish for your family members and loved ones.
Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they may apply to you or someone you know.
- Your home-made Will is lost or cannot be found
When a lawyer prepares a Will for you they usually hold the Will after signing in safe custody on your behalf and provide you with copies for your records.
Even if you take the original Will the lawyer will keep properly certified copies of the original Will. If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.
If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.
- Your hand-written Will is not signed correctly
There are very strict requirements for the signing and witnessing of Wills. If your Will is not signed correctly or is not witnessed properly it may be invalid.
If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.
Once your Will is made even writing on it later or making any changes will invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.
- You own a business
If you own a business, it is likely that the business will continue to run after you pass away. This includes the day to day operations of the business and the ongoing expenses such as payment of rent, wages and other outgoings.
In order for your business to continue its operations, you need to validly appoint an executor under your Will to step in on your behalf until your business is either sold or dissolved. An executor can ensure that the expenses of the business continue to be paid which minimises the likelihood of financial hardship upon the business and its staff, and the risk of the business being liquidated.
- You and your partner are not married and own property together
If you and your partner have purchased a property as tenants in common in equal or unequal shares, it is important that your Will specifies your wishes as to who your share is to pass to upon your passing. A valid Will ensures that the transfer of your share in the property can take place in a cost-effective manner and in accordance with your wishes.
- Previously made Wills are not automatically revoked when you make a new Will
It is important to update your Will as your circumstances change.
For example, if you enter into a de facto relationship and have an existing Will which provides for your estate to pass to other members of your family, you should update your Will to reflect your wishes.
If you have not updated your Will or revoked your earlier Will, your estate may pass to those provided for in your earlier Will and your de facto partner may have a Family Provision claim upon your estate.
- 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 do not have a valid Will the property cannot be transferred until the Court appoints an administrator to distribute your estate. This process is time consuming and significant costs may be incurred.
- You are part of a ‘blended family’
It is not uncommon for people to re-partner and/or remarry after a separation or divorce.
It is important for your Will to reflect your circumstances and adequately provide for those who are considered ‘eligible beneficiaries’ under the Succession Act.
Where your Will does not adequately provide for an eligible beneficiary, your Estate may be at risk of a Family Provision claim which will cause your family members distress, financial hardship and delays in administering your Estate.
A lawyer can provide you with advice to prepare a Will which considers the Succession Act and how you can minimise the risk of a Family Provision claim upon your estate.
- You are contemplating getting married, or contemplating getting divorced
Marriage and divorce revoke a Will.
For this reason, if you are contemplating marriage, or anticipating divorce, it is important that your Will makes provision for this.
If your Will is revoked and you have not prepared a new Will, your estate will be administered under intestacy laws. The process of applying to the Court to administer your estate under intestacy is costly, time consuming and may result in your estate passing to people who you did not wish to benefit.
- 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.
A lawyer can provide you with appropriate advice in dealing with superannuation under your Will to minimise the likelihood of financial hardship upon your loved ones as a result of delays in releasing the funds.
- Lawyers are trained to write valid Wills
Your lawyer will always do these two things when drafting your Will, they:
- take into account the strict law requirements for a Will to be considered valid by the state probate court; and
- also consider your particular situation and the specific individualised elements you need included in your Will.
Your lawyer can also help plan other aspects of your estate such as whether you need to appoint a guardian for your children, a trustee to run your business or whether an elderly relative needs to remain in your home after you are gone and a myriad of life circumstances that are particular to you.
If you or someone you know wants more information or needs help or advice in preparing a valid Will please contact us on (02) 8014 5885 or email firstname.lastname@example.org.