There's No Fixing This Mistake - Homemade Wills

Imagine you need a new toilet installed in your bathroom.  You’re not a plumber but plumbers are expensive. You can buy a new toilet suite and all the relevant parts from the local hardware store.  You can find a video online showing you how to do it. You’re handy, good with tools.  It’s easy! 

Perhaps you succeed.  For now.  Perhaps you think you’ve succeeded but are unaware that water is slowly seeping into the spaces between the walls and the floors. In any event, even if you fail completely, you can always call in a plumber to fix up your mistakes and all will be well in the end.

Now, many people apply this thinking to the most important legal document of their life – a Will.  There are, of course, many differences to the ‘toilet scenario’ but one in particular that cannot be ignored – if you fail in your attempt to make a valid Will, there’s no fixing it. Any inconsistencies, discrepancies, invalidities, omissions and other errors won’t be discovered until after you’re dead.  Then, the few hundred dollars you may have saved by “DIYing” turns into potentially several hundred thousand dollars in long, costly court proceedings.

“Homemade Wills are a curse.” This statement was made by Master Sanderson of the Supreme Court of Western Australia in Gray v Gray [2013] WASC 387. In that case the homemade Will was unclear and “the inevitable result [was] an expensive legal battle.” Master Sanderson goes on to say that, “there is no question…that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.”

There are a couple of maxims that come to mind when I think of non-lawyers (or even lawyers who aren’t estate planning lawyers) drafting Wills.  One is, “you don’t know what you don’t know” and the other is, “a little bit of knowledge can be dangerous”.

I urge anyone contemplating creating their own Will to consider the following issues and, if you are left less than 100% confident, please contact a professional for advice. (I note that the list of issues outlined below is not comprehensive and there may be other, more significant, considerations depending on your circumstances.)

 Issues to Consider

  • Are you aware of the nature of your estate?
    • Do you know the difference between estate and non-estate assets?
    • Do you know what can and cannot be gifted in a Will?
  • Are you aware of the strict requirements of a valid Will as set out in legislation?
  • Are you aware of the tax implications of your proposed gifts?
  • Is it possible that your gifts could adversely affect your beneficiaries?
    • Tax
    • Centrelink
    • Family court proceedings
    • Bankruptcy
  • Are you aware of family provision legislation and the people who may be able to claim against your estate?
    • Do you know how to minimise the risk of any claims?
  • If your Will was held to be invalid and you died intestate, do you know how your estate would be distributed and would you be happy with that?

At Cariad Legal, we have chosen to offer services exclusively in the area of estate planning.  We can guide you through the process of drafting your Will, drawing your attention to matters you may never have been aware of and ensuring that you are left with certainty, clarity and peace of mind.

by Catherine Lynch, May 2019

The information in this article does not constitute legal advice and should not be used as such. The information provided in this article is not intended to be comprehensive and is intended to provide general information only.

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