Is a do-it-yourself will really cheaper?18-06-2021 | Resource
It is two scenarios that many solicitors practicing in the area of Wills and Estates have found themselves in once or twice before.
The first is that your clients have prepared their own Will, they provide you with a copy and ask: "I got this Will Kit from the post office and filled it out, is this okay?"
The second: someone has passed away and their family members provide you with a copy of the deceased person's Will: "It's just a handwritten one he did himself, we found it at home amongst his paperwork."
In both of these scenarios, the person who prepared their own Will, referred to as a "Testator" did not obtain legal advice beforehand. Fortunately, in the first scenario, they have the ability to amend or update their Will. Unfortunately, in the second scenario, the Will, and any problems it may pose, cannot be remedied so easily.
In New South Wales, the Succession Act 2006 (NSW) imposes strict requirements about how a Will is required to be executed, or signed, for it to be valid. For example, a Will requires the Testator (the Will-Maker) to sign each page of their Will in front of two witnesses who are over the age of 18 years. The witnesses must not be referred to in the Will.
A Do-it-yourself Will that we were asked to review recently fulfilled the requirement of having two witnesses sign each page of the Will, and yet the Will-Maker had not actually signed the Will. Had the Will-Maker died prior to executing a new Will, major issues would have arisen because it was not signed correctly (or in this case, not signed at all).
Another example of a home-made Will that involved the Will-Maker signing their Will in front of their two children, who were also two of their beneficiaries (referred to as "interested witnesses"). Section 10 of the Succession Act 2006 (NSW) specifically states that any gifts to those beneficiaries who witnessed the Will are void at first instance. Without obtaining legal advice to update their Will, it would have resulted in many complications after their death with the legal fees to remedy this mistake far outweighing the costs of preparing a Will charged by a solicitor.
An error made on behalf of the Will-Maker that was unable to be reversed due to the Will-Maker dying before obtaining legal advice about his handwritten Will, resulted in his child missing out on tens of thousands of dollars. At first instance, superannuation does not form part of a person's assets when they die, meaning that their Will does not govern how the superannuation is to be distributed. Instead, the Trustee of the superannuation fund will make a decision about who is to receive it and in what shares. To avoid the Trustee determining this, the Will-Maker can nominate their own beneficiaries on their superannuation account.
As the Will-Maker did not understand that the superannuation was not part of his estate and therefore not governed by his Will, the gift to his child of "20% of my superannuation" failed and the child received nothing from his estate. Instead, the deceased's second wife received the superannuation in its entirety. Had the Will-Maker obtained legal advice prior to his death, this error would have been avoided.
When you engage a solicitor to prepare a Will on your behalf, you are not only paying for the preparation of a Will, but you are paying for the advice that is specific to your circumstances to ensure that your wishes actually come into effect the way you want them to. Additionally, simple mistakes which could prove costly after your death and could result in proceedings in the Supreme Court, costing your estate thousands of dollars in legal fees, can be prevented by engaging a solicitor to prepare your Will.