Risks of using a DIY Will Kit

One of the many outcomes of the COVID-19 pandemic has been the explosion in people
making WILLS and the use of DIY WILL Kits.


While it is great that more people are making WILLS as every adult should have a valid
WILL it is crucial that the WILL accurately captures your wishes, takes into account your
circumstances and is validity executed. The temptation to use a DIY kit, because it is
cheap is risky could well result in costs to your estate and intended beneficiaries that will
significantly outweigh any savings you may have achieved at the time of preparation of
your WILL.


The dangers of drafting your own DIY Will include:

1. Problems with signing and execution

Even though WILL kits usually contain detailed instructions about how a WILL needs
to be executed it is not unusual for these instructions to be overlooked or
misinterpreted. Examples include situations where the WILL is not dated signed or
witnessed properly. The WILL may refer to a list, setting out who is to receive what
but there are alterations that have been made to the WILL after it was signed and
witnessed. The WILL is signed by the testator and two witnesses but one of these is
a beneficiary or family Member of the testator.

2. Making Specific Gifts

Far far away, behind the word mountains, far from the countries Vokalia and Consonantia, there live the blind texts.

It is risky referring to a specific asset or property in a Will as you may not own that
asset at the time of your death. Better to refer to a class of assets.

3. Not specifying a Guardianship for your children

This may result in the most suitable person applying to the Family Court for a
parenting application. This situation can be avoided by making an application to the
Court nominating a guardian in your Will.

4. Not nominating alternative Beneficiaries and Executors

It is possible that your beneficiaries pass away at the same time as you and if you
have not nominated beneficiaries to cover such a scenario then you will be
considered to have died intestate. Executors fulfil an important role and particularly
if you have young children, the Executor usually fulfils the role of trustee and has the
responsibility of holding the assets of the estate in trust for the children. Appointing
an alternate Executor in this case is important.

5. What does your Estate consist of

When drafting a WILL you need to be aware of what your estate consists of. For
example, Superannuation and joint assets are not estate assets.

6. Decide how you want your estate distributed

You can use your WILL to create Trusts for your children or other beneficiaries. There
may be benefits in using testamentary trusts. Will kits fail to explain a person’s family
circumstances e.g. disabilities, blended families.

When preparing a WILL it is crucial that it is prepared in accordance with the relevant
laws in NSW. This includes, not just The Succession Act 2006 but other legislation.
By avoiding lawyers’ costs and using a DIY WILL kit or other purchases template you are
increasing the risk that the WILL might fail or someone could challenge it and in so doing
increase the costs to the Estate.


You are increasing the risk that you may not correctly identify who gets what or not
effectively deal with the WILL makers assets or adequately take into account non estate
assets.


If you want to correctly document your intentions and ensure your assets pass in
accordance with your wishes, you should obtain the advice of an experienced estate
planning lawyer to prepare your WILL.

Amanda Dobbie & Associates provides legal advice and Estate Planning advice to businesses and individuals in the last eight years. Contact us today for a free consultation.

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