The DIY Will: Cheap Now, Expensive Later
Those in the Estate Planning space are often confronted with the question: “Why shouldn’t I do my Will myself?” It is a fair question, especially considering that DIY Will websites or DIY Will kits seem to make the whole process look easy. DIY Wills are almost always the cheaper option. However, just because something is easy does not mean it is quality, and cost savings in the short term may lead to more expensive outcomes.
Legal Formalities
The first risk that a DIY Will presents is adhering to the requirements of signing. There are very strict rules around the form of the document itself, and it is quite common for DIY Wills to fail in this regard. There are rules around who should and should not witness, the process of witnessing, as well as the requirements of the signatures themselves. This can invalidate an entire Will, having a destructive effect on the wishes of the deceased. The Will may then be subject to intestacy laws (which are outlined in our FAQ question: “What happens if I die without a Will”).
Even if a Court rules that the Will is valid, estates are usually obligated to pay for the legal costs of all parties. In one such case, Donald v Guillesser, the deceased, Mr Dawson, died with his wife in a plane crash. Mr Dawson had left a Will that he prepared from a Will-kit. In this Will, Mr Dawson gifted the residue of his estate to his wife and if she “predeceased” him, to various members of his family.
Mr Dawson’s mother, who did not receive a gift under the Will, claimed that the entire estate was subject to the intestacy rules, on the basis that Mr Dawson’s wife did not actually predecease him. If successful, Mr Dawson’s mother would have received the entire estate as she was the deceased’s next-of-kin.
Mr Dawson’s mother was unsuccessful in her claim, so Mr Dawson’s wishes as stated by his Will were carried out. Mr Dawson’s mother was unsuccessful but would have had no case at all had it not been for the vague terms of the Will. All of this could have been avoided had Mr Dawson engaged a professional to draft his Will. This matter would have incurred significant legal costs for all parties, dwarfing the savings made on the purchase of the Will-kit.
Estates have incurred significant costs in legal battles on the issue of whether an improperly drafted Will was truly the final testamentary wish of the deceased, or instead, a draft or merely notes.
Assets
Wills are only to dispose of assets that you own at the time of your death, however, DIY Will-makers often make the mistake of trying to give away assets that cannot be dealt with by a Will. This mistake may arise simply out of forgetting to update your Will when you’ve sold your house, resulting in a failed residence gift to a loved one. For more complex estates, where funds are tied to superannuation, life insurance policies, trustees, companies, or several other entities, it is easy to lose track of what should be dealt with by a Will and where it is all supposed to go. You don’t know what you don’t know, and so whenever someone attempts something without the required expertise, they will need to make assumptions, often which are incorrect.
One size does not fit all
A point that is often made by DIY Will-makers is that as technology gets more advanced, and the internet becomes more sophisticated, it is easier than ever to create customised DIY Wills. This can simply not be possible. You may have assets in the form of a variety of different entities, with each entity having its own laws, policies or methods of operation. For example, superannuation funds all have separate policies with regard to paying out your super on your death.
In addition to the wide array of circumstances that may govern your estate, you also need advice. Sure, you may wish to gift an asset in your Will, but is there a more efficient or more tax-effective way to do so? DIY Wills do not answer, let alone ask, such questions.
A Will on its own is not likely to cover everything that is required to enact your wishes. When we talk to you about your intentions after your death, we give you the guidance you need to put those wishes into effect. Websites or pamphlets are not able to perform such tasks, and a DIY Will-maker will be completely unaware of these kinds of issues.
Children
When we meet with clients, we talk to them about their wishes for their children. While we try to make the process as simple as we can, there are many considerations that go into providing and/or caring for your children in the case of your death. You may have some idea of who you wish to care for your children, but we raise all the relevant issues with you so that your choice is truly an informed decision. For example, what happens if something were to happen to your proposed Guardians?
There are more factors that should be considered when making decisions on your children’s inheritance. One such consideration is the issue of tax. The costs that are saved on making a DIY Will may be heavily outweighed by the tax implications to your children. There are ways to avoid such pitfalls, all of which we consider and present to you during our meeting. Another consideration is the issue of trusts. Trusts are an excellent way for a Will-maker to protect the assets of the estate from challenge and to generate wealth for generations to come. You can read more about Trusts here. Many DIY Will-makers are unfortunately unaware of these benefits.
When we think about our Estate Planning, we usually have the well-being and security of our children at the forefront of our minds. This may all be compromised by ill-informed Will-drafting.
Ultimately, anyone can attempt to use a DIY Will kit to express their wishes. In the short term, this will result in saving some time and money. However, good Estate Planning is not just writing or updating a Will. Good Estate Planning comes from professional, tailored advice that considers all of your wishes, assets and familial circumstances in order to formulate your Will that will best give effect to your intentions, and provide you with the peace of mind that comes with it.
To book an initial consultation, click the “Book a Consultation” button below, or call us for a free 20-minute chat.
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