Most people mistakenly think that preparing a Will is an easy task. It is important to know that the laws surrounding a valid Will are not simple and there are strict rules that apply.
Far too often we come across home-made Wills that are not signed and witnessed correctly and may therefore be invalid. Certain formalities must be carried out when making a Will. If they are not followed, if the Will contains errors, or is drafted with incorrect language – it may also be deemed invalid.
Unfortunately, the Courts cannot find only “part” of the Will to be invalid. Its either valid or invalid, not a mixture of both. If it is invalid, this means your Estate would be subject to the laws of intestacy. This could mean that people you wished to exclude from your Will, end up being beneficiaries of your Estate.
Some people choose to do home-made Wills to avoid the cost of having one prepared by a Lawyer. Your Will is one of the most important documents you may ever make. It says who looks after your Estate and who will inherit it. While a home-made Will is less costly, there are many risks involved and they may create more costs to your Estate down the track. Defending a challenge to a Will in Court that was not signed and witnessed properly may prove to be much more difficult than defending a valid Will.
A danger I have seen with home-made Wills, is when they are drafted in a way that divides the Estate’s assets individually - for example, “I give my house to my daughter” or “I give my bank account to my son”. This does not consider the fact that assets may change over time. The money in the bank account may have dropped significantly by the time of death, or worse, the house may be held as Joint Tenancy with someone else and it cannot be gifted via a Will. Similarly, with Superannuation the Will may say “I leave my superannuation equally to my 3 children” when it is possible the superannuation does not form part of the Estate.
These are all issues that:
- A layperson may not be aware of; and
- A lawyer will cover with you before you sign your Will to ensure your wishes are protected.
Not all those that make home-made Wills are aware that there are people you may have a legal obligation to provide for in your Will. This raises a host of issues in relation to claims against your Estate, (see previous Blog titled, “Can my Will be Contested After I Die”).
There is far more to be considered when preparing your Will than “who gets what”. If you are unaware of the laws regulating to Wills and Estates, it is best to steer clear of DIY Will Kits.
Peter Brock DIY Will Downfall
Surprisingly, many wealthy and high-profile people die without Wills or with invalid DIY home-made Wills. A famous example is the victorious Bathurst 1000 driver, Peter Brock. Following his tragic death came a costly legal war between his partner, his children and his estranged wife. Mr Brock made 3 Wills, his most recent Will was a DIY one made in 2006. It was never signed. The Supreme Court of Victoria deemed the 2006 Will to be invalid.
A Will he had made in 2003 was found by the Supreme Court to be valid, however, it failed to outline how the Estate would be distributed. The Estate then was distributed under the intestacy rules, which led to his Estate going equally to his two biological children. This was a problem because, at the time of Mr Brock’s death, his family was not just him and his biological children. Mr Brock had a partner of 15 years, a previous spouse of approximately 18 years and her son (his non-biological child) that he had raised as his own. These 3 remaining family members missed out on a share of the Estate.
If you would like to read more about this case, click on this link:
It is not difficult to incorrectly sign a Will, which is why we encourage people to have their Wills drafted by a professional. You may be cutting costs in the short term, but you risk your Will being invalid, which will be significantly more costly in the long term.
