Do-it-yourself Will kits have become widely available in recent years.  While they may seem like a cost effective alternative to the will drafting services provided by a lawyer, they sometimes lead to costly and protracted litigation that could have been avoided if the Will had been drafted by a lawyer.

We recently acted for a client whose elderly spinster aunt, for whom she had provided care for many years, wished to make a new Will.  Her aunt did not like leaving the house and so, to make the process easier for her, the niece purchased a Will kit.  After asking what she wished to include in her Will, the niece hand wrote the Will, and then arranged for two friends to come to the house to witness the signing of the document.  The provisions of the Will were fairly simple and were clearly articulated – the niece was appointed executor and was to receive most of the estate if another elderly relative predeceased the aunt.  The Will was duly signed and our client and her aunt thought that everything had been taken care of.

Unfortunately, what they didn’t know (and hadn’t been warned about by the Will kit) was that problems can arise when it comes time to apply for a Grant of Probate of the Will.  In particular, the suspicion of the Registrar of Probates is aroused in circumstances where:

  1. a Will has been handwritten by a beneficiary;  or
  2. the signature of the will maker appears shaky, or there are other circumstances surrounding the making of the Will that indicate that the will maker may have lacked testamentary capacity.

In this instance, the Registrar of Probates requested further evidence regarding the execution of the Will.  We took detailed Affidavits from the two witnesses regarding the circumstances surrounding the signing of the Will, and specifically that the aunt had intended to leave her estate to her niece.  If the Registrar of Probates had not been satisfied with the additional evidence, the matter would have been referred to the Supreme Court and significant costs would have been incurred in attempting to prove that the aunt had testamentary capacity and that there were no suspicious circumstances.  Even though court proceedings were avoided, our client still incurred significant legal costs well beyond the costs of having a Will drafted by a lawyer in the first place.

Other pitfalls of using a Will kit include:

  1. Where a person owns assets through corporate entities or trusts, it is never a good idea to use a Will kit, as only lawyers have the expertise to properly draft Wills involving complex asset structures.
  2. People using Will kits sometimes inadvertently fail to appoint an executor or name a beneficiary for the residue of the estate, which means that the Probate process will be more complicated and costly.
  3. People will often change their mind about who they wish to leave their assets to after speaking with a lawyer and considering the lawyer’s advice.  There is no substitute for good legal advice.
  4. There are a number of structures that can be set up in a Will, including a testamentary trust or life interest.  A lawyer can assess the best way of structuring the Will to suit the client’s individual circumstances.
  5. Wills prepared using do-it-yourself Will kits are often not clearly drafted, leading to litigation between beneficiaries.
  6. Lawyers will ensure that a Will has been properly executed and is valid. 

RKL provides a comprehensive Will drafting and advice service.

This article is intended to provide general information only and is not a substitute for legal advice. To obtain legal advice tailored to your situation please contact Rudstein Kron Lawyers on (03) 9519 9888.