Avoid The DIY Will Curse Blog article
Ask your friends if they have their Will sorted and you’ll likely receive a blank stare and a quick change of subject.
Let’s be honest - no one really wants to talk about it, but the heartache and expense left for loved ones to deal with is far more uncomfortable.
If you believe your assets and wishes are too simple to require your Will to be prepared by a lawyer, and think picking up a cheap Will kit from the post office will suffice, then please do your family a favour and put in enough research to determine if a DIY approach to your estate planning can really meet your needs.
- Are you sure your documents comply with the conditions set out in the Wills Act?
- Have you considered how your superannuation or life insurance will be distributed?
- Do you know who else may have the right to make a claim on your estate?
- How have you lessened the risk of a dispute over your Will?
- Could there be any uncertainty around clauses and wording in your Will?
- Are there any CGT implications that need to be accounted for?
If you’re not sure, you need to see an experienced Estate Planning lawyer. They will walk you through the maze of future possibilities to ensure your Will can stand the test of time. Your questions will be answered, and structures and strategies may be suggested that you would never have thought of.
A seemingly simple case that highlights the problems that can arise when people draft their own Wills is the recent decision of the Supreme Court of WA in Rogers v Rogers Young 
In this case, the deceased had utilised a ‘will kit’. In her Will she stated that, if at the time of her death any beneficiary was under the age of 18, then their share was to be held on trust until they reached the age of 25. At the time of the Will-maker’s death, her daughter was just 16 years old meaning a trust would need to be administered for the daughter’s benefit until she reached 25. However, law states that if the beneficiary of a trust is over the age of 18 years, and has an absolute vested and indefeasible interest in that trust, then they can request that the trust be terminated and the trust assets be transferred to him or her. Given the legal uncertainty which arose, the Executor made an application to the Supreme Court, seeking direction as to the proper interpretation of the Will.
The Court held that the daughter would acquire an absolute vested and indefeasible interest in the trust property when she reaches the age of 18, despite the clearly apparent intentions of her mother that she should not receive the benefit until the age of 25. After this decision, the Court made the following statement about Will kits and homemade Wills:
On numerous occasions when dealing with so-called homemade Wills, I have observed they are a curse. Homemade Wills which utilise what is sometimes known as a ‘Will kit’ are not much better. This case proves the point. The disposition effected by the Will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the Will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the Will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.
In short, while the DIY Will Kit may seem like a cost effective approach to your Estate Planning now, you stand to leave your family with significant legal expenses (potentially thousands of dollars) and long delays when trying to fix it up. Is that really what you want to leave behind?