Why Writing Your Own Will is a Bad Idea

The risks of using online Will templates

It’s easy to find a free Will template on the internet, or to buy a Will “kit” from a newsagency or post office. There are even websites that have “data collectors” that input your information and produce a legal document for you, without any legal expertise required! But, is it really a good idea to write a will yourself?

While these online options seem convenient, they often fail to account for the complexities of individual circumstances. Below, we outline why relying on a DIY solution can be risky.

Why you need a valid Will and executor

The sole purpose of writing a Will is to direct who will receive your estate after your death. The assets that form part of your estate are assets held in your sole name. Assets that are held jointly with another person, in a business, or in a family trust do not form part of your estate and will not be distributed under your Will.

If you have a valid Will, your appointed executor will need to apply to the Supreme Court of Western Australia for a grant of probate. This provides your executor the authority to call in your assets, pay out your debts and expenses, and distribute your estate in accordance with your Will.

If you have a Will that is deemed not valid by the Supreme Court, then your estate will be distributed in accordance with a table set out in section 14 of the Administration Act 1903 (WA). A family member, or in some cases the Public Trustee, will then apply to the Supreme Court for a grant of letters of administration to fulfill the abovementioned roles of an executor. Such an application involves increased legal fees and charges that deplete the estate. It may also cause a delay in distributing your estate, especially if a person entitled to a share of your estate is a minor.

Most people think that their situation is simple enough for a DIY Will, but consider the following situations and whether they may apply to you.

Your DIY Will is lost or cannot be found

When you prepare a Will with TLS, you will take the original Will for safekeeping, but we also keep copies of your Will on file. This means that, if you lose your original Will, we can help your executor apply for probate of a copy of the Will (providing we can prove you didn’t deliberately destroy the Will to revoke it).

If you lose or are unable to find your DIY Will and there are no other copies, your executor cannot apply for probate of a copy of the Will. Therefore, your estate will be distributed in accordance with the Administration Act and your family will have the lengthy and costly task of applying for a grant of letters of administration, rather than the simpler grant of probate.

Crucial information on signing requirements

A Will must meet the formal requirements of Part 3 Section 8 of the Wills Act 1970 (WA), which are:

• It is in writing
• It is signed by yourself (“the testator”), or signed in the testator’s name by another person in the testator’s presence and by the testator’s direction. In this case, the signature needs to be placed clearly to show you intended to finalise the document.
• The testator makes or acknowledges the signature in the presence of at least 2 witnesses at the same time.
• The witnesses must sign the Will in the presence of the testator.

If your Will isn’t signed or witnessed correctly, it may be invalid. While the Supreme Court can sometimes accept an informal Will if your intentions were clear, this is not automatic. Your executor would need to make a difficult, expensive application to the Supreme Court to prove it is valid.

Additionally, you should never write on or change your Will after it is signed. Even small handwritten changes can make the whole document invalid in administering your estate.

Dealing with business assets

If you are a business owner, depending on the structure of the business, it is likely that the business will continue to run after you pass. You will need a validly appointed executor to run the business, access bank accounts, and manage operations until it is either sold or dissolved. You can achieve this in a valid Will.

Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid. This may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.

You and your partner are not married

If you own your home in separate shares (for example, as tenants in common in equal shares), to protect children from a prior relationship or for some other reason, your share will not automatically transfer to your partner when you die. Instead, it gets stuck in your estate. Without a valid Will, sorting out the ownership of the property becomes a complicated and expensive legal mess.

Conflicting documents and your final wishes

Previously made Wills are not automatically revoked when you make a new DIY Will. When you were young and single, you may have made a Will which leaves your estate to your parents. After you commenced a relationship and had children, you may have made a new DIY Will, which leaves your estate to your spouse if they survive you, or to your children if your spouse does not survive you.

If your new DIY Will does not explicitly state that it revokes your old Will, you could end up with two Wills that contradict each other. In this case, the Supreme Court would have to step in to interpret your intentions, which takes time and money.

What’s worse, if your new DIY Will is found to be invalid, your estate may be left to your parents in accordance with your old Will. To fix this, your partner or children would have to sue your estate under the Family Provision Act 1972. This is a stressful, high-conflict, and very expensive way for them to get the financial support they need.

You are married but hold property solely in your name

You may have bought the property when you were single; owned the property from a previous marriage, or inherited it from your parents. If you have no valid Will and no executor to put into effect what you have written in your Will, the property cannot be transferred until the Court appoints an administrator after delay and costs have been incurred.

If you leave your superannuation in your DIY Will

Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases, superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.

Whilst your Will can dictate that your estate be given to whoever you like, there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death. Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate. Again, the release of funds is not automatic and your loved ones may suffer hardship if the release of funds is delayed.

Lawyers are trained to write valid Wills

Your Last Will and Testament is one of the most significant documents you will ever sign. When drafting your Will with TLS Lawyers, we will always:

• take into account the strict legislative requirements for a Will to be considered valid
• consider your individual circumstances and tailor your Will accordingly.

Your lawyer can also help plan other aspects of your estate planning, such as appointing a guardian for your minor children, preparing an Enduring Power of Attorney, appointing a successor controller in relation to your family trusts, or providing rights for a family member to occupy your home after your death.

Please note the above information is general in nature. If you require specific advice regarding your estate and succession matters, please do not hesitate to contact our team on 08 6383 5551 or re*******@*ls.law to arrange an Introductory Consultation with one of our experienced Wills and Estates lawyers.