Traditionally DIY Wills have been offered through outlets such as post offices, offering a standard template for individuals to fill in as their Will. However, there has recently been a rise in the ability to create a DIY Will online through companies such as Safewill. These processes allow individuals to prepare their own Will using resources provided to them. While such opportunities may seem to present a saving for the testator, a DIY Will has the potential to cost an estate far more than what is saved upfront.
Complexity in Estate Planning
Within standard form Wills which are completed in a DIY Will, there is not the scope to include complexity within the distribution of a person’s estate. These templates often only allow for assets to be divided between a small number of individuals. Within many modern families and relationships, these standard form Wills simply can not cater to the demands of many people.
These DIY Wills can also fail to allow you to express your wishes in regard to matters beyond the distribution of your estate. Within a Will, you may wish to give direction to matters such as organ donation, your preference for cremation or burial, or your wishes regarding the guardianship of dependents. A DIY Will often will not give you the scope to include such directions whereas having a lawyer prepare your Will can allow such wishes to be expressed.
Under West Australian law there are provisions surrounding the witnessing of Wills, requiring two adult witnesses to both be present at the same time to witness your signature on each page of the document. If these processes are not followed when executing the Will, the will may not be enforceable.
Need for Professional Advice
In many circumstances, people may seek to exclude a family member from their Will for a variety of reasons. This decision can often lead to a Will being contested by the excluded individual. Working with a legal professional in the planning of your estate can allow for you to take advice under the Family Provisions Act 1972 (WA) to best ensure that your wishes are followed. Legal professionals have the knowledge required to ensure the wording of your Will is best done to avoid limit challenges by family members left out of the Will.
Small mistakes made within the preparation of a will can have major consequences. From the misspelling of a name to incorrect word choice or even punctuation, inaccuracies, these errors can lead to a Will not having its desired effect. As such the consulting of a legal professional can be vital in ensuring that your wishes are reflected by the Will you have prepared. There are no safeguards against such mistakes in the preparation of a DIY Will.
There are also other considerations such as the establishment of testamentary trusts to ensure the protection of vulnerable beneficiaries such as minors. The establishment of a trust can mean that the money is better protected for these parties until they reach an age at which they can access such funds. This process allows for the avoidance of exploitation of vulnerable parties.
A DIY Will is far more likely to be contested than one drawn up by a lawyer. The process of dealing with a contested estate is a costly, emotionally draining, and time-consuming one, which sometimes ultimately results in the size of the estate being greatly reduced.
A Will can be contested for a number of reasons, one of which can be a mistake made within the Will itself, such mistakes can easily occur when someone without legal expertise attempts to create a Will.
Another factor that can be contested surrounding a Will is an individual’s testamentary capacity. If an individual at the time of executing their Will is found to not have had capacity their Will is unenforceable. Part of our process in the preparation of a Will is to ensure that each individual has testamentary capacity.
Avoiding the contesting of your Will can allow for peace of mind for your family following your passing as the contesting process can cause family divisions.
Estate planning is something that is vastly complex and requires expertise in order to avoid a drawn-out process and the possibility of a reduction in the size of the estate due to litigation. As such legal expertise is important in ensuring that your estate is best distributed in line with your wishes. DIY Wills, while having the appearance of a convenient short-term saving, can ultimately have the effect of meaning that your wishes are not enforced as you desired.
Lynn and Brown Lawyers have a skilled team of estate planning lawyers who are well-equipped to guide you through the estate planning process, you can contact us at www.lynnandbrown.com.au or by calling 9375 3411.
About the Author: This article was authored by Myles Brown. Myles is currently studying a Bachelor of Criminology and Criminal Justice at UWA. Following this Myles will commence his Juris Doctor at UWA.