Wills – to DIY or not to DIY?
Nothing alarms me more as a solicitor than hearing a client tell me that their loved one has passed away and left a DIY Will. They may have used a Will kit, a piece of paper or even a napkin.
The reason for my alarm is it will mean a fair amount of work for me to unravel the Will which may very likely expose my client to not insignificant costs, both monetary and emotionally.
I’ll never forget reading the handwritten Will prepared by a European born lady who named her only son as her ‘executioner’. I am pleased to report that he did not carry out that request by his mother. She passed away due to old age and natural causes. Mind you, this was the least of his problems. The myriad other issues resulting from the DIY Will meant it took an inordinate amount of time and lots of documents required to be presented to the court before Probate was eventually granted.
A DIY Will may not be signed properly or the signatures may be in the wrong places on the Will. The witnesses may not be eligible witnesses or may not have signed in accordance with the legislation governing Wills.
Oh and here’s the kicker, even if the DIY Will doesn’t meet the formalities required to make a Will valid, a court may still regard that document as a recording of a persons wishes regardless as to whether it does, in fact, record those wishes correctly.
An Australian court has the power to accept anything that purports to be a person’s testamentary instrument(s) even if they are written on a scrappy bit of paper, video recording, texts and emails. One of the problems with this power is there is no real certainty the document or recording is, in fact, the wishes of the deceased person. Another problem is the amount of time it may take the court to make a decision on the evidence presented to it thereby holding up Probate and thereby holding up the administration of the estate of the deceased. The bottom line is beneficiaries may have to wait quite some time before they receive a legacy from the estate of the deceased.
In short, the drafting of a Will is a very skilled process and an experienced solicitor can not only ensure that your Will meets all of the formalities required to ensure its validity thereby reducing the potential of a successful claim against your estate, but can also provide you with relevant advice as to potential tax implications as well as what may happen to other assets that have not been accounted for in your Will.
In order to avoid ‘getting it wrong’ and to ensure that your assets are distributed to the right people and/or charities, you ought to speak to an experienced solicitor who will give you advice about your specific circumstances.
Contact one of our friendly staff at Bambrick Legal today:
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