Introduction
Everyone has seen them. Your local post office probably sells them. The quick Will Kit option looks desirable, even more so by the cheap price tag on these Kits.
Unfortunately, if something is too good to be true, it probably is.
Will Kits offer a template for you to follow, where you can create your own Will and design the administration of your estate by yourself. They are intended to be implemented without the need for a lawyer. While this is a low-cost option, the lack of precision can often cause significant problems.
4 Common problems created by Will Kits
The law of creating a valid Will can be complex, and we often see Will Kits creating problems. These include:
1.
The Will is incomplete, or incorrect. Some sections may be left blank – perhaps the Will Maker never got around to deciding which of their children and/or friends ought to inherit the house, and left it unassigned. As a result, as the Will is incomplete, intestacy can occur.
Additionally, the lack of legal expertise in the creation of a Will from a Will Kit, can result in the creator trying to give away assets they do not actually own. You cannot give away assets which are not held in your personal name. For example, assets in a family trust, or held in your Superannuation Fund, require additional work and forms to be completed for these assets to be given to your nominated beneficiary. Simply writing your desire for where these assets should go after your death in your Will falls short of the legal requirements regarding their distribution. This is where expert legal advice would have been useful.
2.
The Will does not meet the signatory or witness requirements of the law. The law is very particular about how signatures should be signed in a valid Will, and who is allowed to witness the signatures. Creating a Will from a Will Kit without legal guidance risks breaching these requirements, and the Will be declared as invalid.
For example, if your handwriting, or pen, is different in the signature compared to the other signatures and witnesses of the Will, the Probate Registry can question this. This results in legal costs in preparing affidavits from witnesses explaining why the pen or handwriting changed and confirming that no changes were made to the content of the Will. If you do not have witnesses to the signing of your Will, then your Will becomes invalid.
3.
A simple Will Kit often does not consider difficult family situations, such as blended families or estranged children. Without seeking legal advice, often someone may be included or excluded from the Will despite your best intentions. This can result in challenges to your Will, and incurring legal fees.
4.
The Will is damaged in any way. This includes being creased, stapled, or torn. Even if the damage occurred when you took the Will out of the Will Kit Booklet. The Executor of your estate may have to pay extensive legal fees to explain to the Court how the damage occurred, and prove that the damage did not result in changes to the contents of your Will. For Wills prepared at Northern Beaches Lawyers, we offer our clients the opportunity to leave their Wills with us in safe custody at no charge. Not only does this prevent damage from occurring to the Will, but it removes the possibility of losing the Will by, for example, moving houses or forgetting where you stored it.
Conclusion
These are just some of the many problems which can arise when Wills are created through a Will Kit. The costs one may think is saved by completing a cheap Will Kit from your local post office can often result in protracted Court cases, which involve the Estate and parties in thousands of dollars in legal costs after your death.
Northern Beaches Lawyers can help with your testamentary planning and Wills. The process to make a new Will with us is relatively straightforward, and we use our 25 years of legal expertise to navigate the process for you and advise you about other issues you need to consider in your estate planning. Engaging a lawyer to advise on and prepare your Will now, is an investment that will safeguard your testamentary wishes.
