Believe me when I say that I have a love, hate relationship with Will kits.

I love them because, no matter how many I see, there are ALWAYS problems with them.  Issues arise not necessarily through the blank document (or template) itself, but by the way people complete them (or sometimes don’t complete them).  And in my world, problems equal profits.  However, at the same time my feelings towards them are best described as one leaning in the direction of hatred.  In fact, it is fair to say that a big part of me really despises them.

You see Will kits, by their very nature, sell an illusion of safety.

I am in the business of justice, and nothing (and I mean nothing), angers me more than the injustice that arises from a product being sold that makes promises that it can’t possibly deliver on.  While most people are aware of the reality that they need a Will, too often there exists a tension between this and the reality that one will need to devote funds to have one drawn up by a professional.  The creators of Will kits understand this, and accordingly, claim to provide the ‘peace of mind’ that comes with a legally binding Will yet for a fraction of the cost of a professional Will.

Nothing could be further from the truth.

In nearly twenty years in the legal profession I have observed time and time again how the most seemingly innocuous of issues arising from estates where a Will Kit was used, often leads to big issues (and expenses) when it comes to the finalisation of an estate.

This was made quite evident through a recent example examined by the Supreme Court in South Australia.

In the matter in question, the Will Kit appointed the wife and son “A” as an executor.   The  pre-printed section of the form continued with the words:

“…but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting then I appoint….”, and second son “B” was named.

In this situation the wife pre-deceased the Will writer, and as such, the question which was referred to the Supreme Court Judge, was whether son “A” was only appointed executor if the wife had survived, or whether, as the case was, the two sons “A” and “B” would act jointly as executors.

It was quite likely that the two sons did not care who acted as executor. If either one, or both acted, or neither; so long as the estate could be administered with the least amount of fuss, delay and of course, expense.

Unfortunately, the Probate Registry do not see things that way at all.

So off they went to the Supreme Court (at considerable expense) to get an order as to who should act as executor.  Turns out the Judge found that both sons would act as executors as other sections of the pre-printed and completed will kit indicated that a joint appointment was intended.

I’ve said it before and I will say it again, I love will kits.

You stuff them up, I get to fix them!

The old adage, ‘you get what you pay for’ applies here.  A cheap Will is most certainly that.  Cheap.  Have your Will professionally prepared by a solicitor skilled in all aspects of Wills and Estates.  An investment in this now will save your beneficiaries money and heartache later, at a time when they would probably prefer to be honouring your memory.

If I had a dollar for every time someone said this to me I could retire right now.  You see everyone thinks that their circumstances are straightforward and it follows then that they believe that their Estate needs will be easily satisfied with either a “cheap Will”, a blank template where you enter names and addresses; or, even worse, a DIY Will Kit.

Truth is, few Wills actually are straightforward, and a generic Will rarely ‘cuts the mustard’ for most people.  In fact, there are a tonne of situations that can make drafting a Will a complicated process best undertaken by an expert.  Consider the following scenarios and ask yourself if any of these situations apply to you:

–          Have you ever been divorced or separated?

–          Following a separation or divorce have you remarried or have you commenced co-habiting with another person?

–          Do you have children to two or more different people?

–          Are you employed by the government and have superannuation with Super SA?

–          Do you own real estate, wholly or with another person(s)?

–          Have you ever been declared bankrupt?

–          Have your children ever been declared bankrupt?

–          Are you concerned that assets will be lost to children following a divorce?

–          Following your divorce are you concerned about what might happen if your ex-spouse remarries?

–          Do you own a business, wholly or with another person(s)?

–          Do you own shares?

–          Are you a professional and thus open to the risk of litigation (eg any professional, especially Lawyers, Doctors, Accountants and          Financial Advisers)?

–          Do you have children who are minors?

–          Are you uncertain if you have a death benefit associated with your superannuation fund?

–          Do you know who your beneficiary nominated in your superannuation is?

Each of the situations described above requires a high degree of personalisation when it comes to the drafting of a Will.  This is not possible to do with a generic Will and definitely not possible with a DIY Will kit.  Furthermore, some of these situations will necessitate drafting of a Testamentary Trust.  This specific type of Will is best undertaken by an Estate Specialist, with many in the legal profession unskilled in this area.

There are many risks associated with generic and DIY Wills.  In a nutshell they often prove grossly inadequate when it comes to meeting the needs of the ‘average person’, with the potential for unintended errors that may cost your beneficiaries large sums in legal costs.  At Welden & Coluccio Lawyers, we have the know-how to ensure that every aspect of your circumstances is taken into consideration for the protection of your beneficiaries and your wishes.

Estate Planning Specialist Greg Welden explores the dangers associated with DIY Will kits.

DIY Will Kits have been around for a while now and are readily available for the fraction of the price of having a Will prepared by a lawyer. In fact, you can probably pop down to your local post office right now and pick one up for less than the cost of an average pub meal.  I must agree that the promises put forward by these kits makes them seem rather alluring to the average lay person.  I mean, who doesn’t like to save a few dollars?  I know I do.

However, before you race off to buy one, you owe it to yourself to do some research to determine if the promises made by these kits really stack up and if a Will Kit is really capable of meeting your every need.

First things first…..a document must only comply with the conditions set out in the Wills Act to be considered a legal Will, such things like it must be in writing and executed by the testator and in the presence of two or more witnesses present at the same time with the witnesses also signing.

So yes, something written on the back of the proverbial “corn flakes packet” might be a valid Will.

The issues with Will Kits arise after the person who wrote it has died and their family or loved ones are attempting to administer their estate.  It is usually necessary for an executor named in a Will to apply for Probate (a formal process of proving the Will through the Supreme Court of South Australia).  It is at this time problems might arise which can often lead to delays in administering or finalising an estate and also lead to additional expenses in trying to rectify or resolve the issues that arise.

Some of the issues associated with Will Kits that I have seen over the years are:

the executor nominated has since died and there is no substituted executor named;

1. the executor nominated has since died and there is no substituted executor named;

2. the testator gifts a specific bank account to someone but at the time of their death they had changed banks leading to the gift failing;

3. the testator not having disposed of their entire estate leading to a partial intestacy (distribution according to legislation set out by Parliament);

4. the document not being signed correctly (or at all) and not being dated correctly (or at all);

5. the names of executors or beneficiaries being incomplete or incorrect leading to confusion;

6. salacious and scandalous comments being made in a Will requiring an application to a Judge to have them removed;

7. conditions being placed on certain gifts (…”X can have the car but only if he leaves that wife of his that I hate”…) which are either offensive, against public policy or impossible to meet or enforce;

8. a testator wishing to gift property which they own jointly with another such that the property never falls into their estate and ever be capable of being gifted;

9. the Will being revoked by marriage resulting in a distribution the testator did not want;

1. Divorce (not simply separation but the formal legal act of divorce) revokes any reference to the former spouse by way of executor or beneficiary or power of appointment in the Will.

Each of the scenarios described above (and indeed there are no doubt many more of these) has the potential to create serious delays and significant expense when it comes to finalising the estate.  It is impossible for someone without legal training to independently prepare a Will that takes into consideration the wide range of situations that might eventuate.

Using a Will Kit as a tool for estate planning can be likened to using google to diagnose your own medical complaints.  It might work out alright in the end but if you get it wrong the results can be oh so very, very bad.

A solicitor (ideally one experienced in all facets of Estate Planning) will take you through the myriad of possibilities (both now and into the future) to ensure your Will is as robust as possible and can stand the test of time.  All of your questions can be answered and an approach to writing your Will may be raised which had not previously been thought of.  There may also be other strategies available to you to avoid unwanted consequences or avoid a potential inheritance claim.

Have you considered how your superannuation or life insurance will compliment your overall estate plan, do you know who may have a claim on your estate and how best to deal with that, what tax consequences might arise in administering your estate which can be negated?  Well, an experienced estate solicitor can deal with all of these issues and many more.

While the DIY Will Kit is a cost effective approach to Estate Planning it is one fraught with risk.  In fact, while you may save a few dollars now by writing your own Will you stand to leave your family with legal expenses (potentially totalling many thousands of dollars) after you die, in an effort to fix it up.  In fact, as alluded to in the title of this article, the only person who really has anything to gain from DIY Will kits is the lawyers, who will reap large fees to fix up the legal messes that they create.

Is it really worth it?

A week ago Jason and I were interviewed by a journalist from the AFR.  In today’s edition of the publication, 3^rd June 2015, we were quoted for our opinions relating to DIY Wills in the lead article of the lift-out magazine, The Smart Investor.

Aside from feeling humbled by the opportunity to have our views included alongside those understood to be amongst the best legal practitioner’s in the country, we are thrilled to be able to speak about a topic that we are so passionate about.

At Welden & Coluccio Lawyers, we pride ourselves on our commitment to keeping abreast of the latest laws and information relating to Wills and Estates.  Don’t trust your legacy to anyone else.  Call Greg Welden or Jason Coluccio today on (08) 7225 8703, and speak to the Wills and Estate experts at Welden & Coluccio Lawyers.