Peppered with inspirational messages, DIY Will Kits are an expensive option.
This is not the first blog about DIY Will Kits and it is unlikely to be the last given that court decisions continue to be published addressing the pit-falls in using these kits.
The recent Supreme Court decision in Cox (Deceased) again highlights the pitfalls of making a will using a pre-printed form attached to a will kit. To read the full decision click here.
The testator (will-maker) purported to appoint his wife and one of his sons as the executor of the will and to appoint another son as a substitute executor. However, his wife died before him and he did not strike out one or more of the alternative provisions in the will-kit providing for the appointment of executors and an issue arose as to whether he intended for his first son alone or for both sons jointly to be entitled to apply for a grant of probate in the event that his wife died during his lifetime.
The will kit used by the testator was a booklet entitled “Prepare-Your-Own Legal Will Pack: A simple step-by-step guide to writing your own LEGAL WILL”.
The Honourable Justice Bampton notes in the decision that the will kit “is peppered with ‘inspirational’ messages, for example: “Where there’s a Will, There’s a way, To protect what you have, For those you love’ and ‘Where there’s no Will there’s no way’”.The Honourable Justice Bampton further notes that the Will Form “contains a latent difficulty in the appointment of executors and that difficulty has become patent in this case”. I highlight these comments because they are a significant indication of the Court’s view of this document.
In particular, the testator did not strike out one or more of “he/she/they” or one of “does not/do not” or “is/are” in the relevant pre-printed clause on the form. It is noted in the judgment that the step-by-step guide in the will kit did not draw attention to the need to select or strike out the alternatives. Further, despite stating in the guide that up to four executors could be appointed, the pre-printed Will Form provided sufficient space only for the appointment of two executors and one substituted executor.
The Court ultimately directed the Registrar of Probates to proceed on the basis that both sons were jointly entitled to apply for the grant of probate in the estate.
The consequence for the family in the Cox decision is clearly delay and cost. What began as a budget Will resulted in a Supreme Court decision substantially adding to the initial budget purchase of the DIY Will Kit and significantly exceeding the cost of having a will prepared by a lawyer specialising in wills and estates. Further, the fact that a hearing was required to resolve the issue meant that the estate administration would have been delayed while this issue was addressed. This case is but one of many highlighting the problems with cheap DIY will kits.
From reading forum posts it is clear that many people hold the view that their will would be “pretty simple”. Unfortunately, that is not always the case.
It is amazing to read some of the thoughts about wills that are communicated in forum posts. One for instance read that as long as the document stated “this is the last will and testiment (sic) of… and it was witnessed and dated you could just write it up as a word document if you were that inclined” and further “Just follow what is written in your previous will and make the changes necessary”. The defects in that advice, amongst others, include:
- addressing the appointment of executors;
- disposing of the residuary estate;
- correct witnessing;
- due execution;
- is the will appropriately structured to deal with all issues.
Fortunately, a response was swiftly posted in the forum stating “I don’t think they should be allowed to sell them (DIY Will Kits)…See a lawyer”. Further, the response highlighted other aspects of estate planning such as Powers of Attorney which is often an issue which has not been considered at the time people think about their will and therefore an added benefit in obtaining professional advice.
Choice published a review of 5 will kits in an article last year called “A conversation worth having” . The will kits ranged from $4.50 to $30 and found that “all of them have flaws”.
In particular, the Choice article identified a number of pit-falls including:
- They can’t handle blended families.
- They can’t handle self-managed super funds.
- Issues relating to children, taxation, superannuation and executors are not adequately covered.
- There was no space for witnesses to sign each page.
One of the greatest risks is of course that your wishes may not be carried into effect by an error as simple as, for instance, failing to strike out one or more options as was the issue in the Cox case.
This defeats the point of making the Will in the first place.
Even if your situation is “pretty simple”, see a lawyer and get your will done properly.
Call us on 8523 8400 (Gawler) or 8211 6500 (Adelaide) to arrange an appointment for an initial no obligation consultation if you have any questions about wills and estate planning. Alternatively, send an email to firstname.lastname@example.org and we will contact you.