You can write your own will without a lawyer but why take the risk? If the law is not followed, your will may be deemed invalid by the court and unenforceable, or it may be so unclear or improperly drafted that a court may have to decipher your intentions, incurring additional and unnecessary legal expenses - and resulting in a will that does not reflect your intentions.
The most important aspect of preparing a will is obtaining legal advice suited to your unique circumstances to ensure the will is legally valid, enforceable and achieves what you wanted.
Pitfalls of DIY Wills
There are many opportunities to get it wrong when completing a DIY will (including will kits), some common mistakes include:
Not complying with the necessary legal formalities
There are specific legal requirements that must be followed when it comes to proper execution and witnessing of a will including the number of witnesses required, how the document is signed (even pen colour matters). When a ‘DIY’ will (including a purchased will kit) is presented for probate, it almost always immediately triggers the court to issue a requisition on these types of wills requiring evidence of compliance with legal formalities and proof the witnesses actually witnessed the signing of the will. An affidavit is then required from each witness to satisfy the court’s requisition. Often by the time a person has passed away it has been many years since those witnesses signed their name and tracking down witnesses can prove difficult and time consuming (and sometimes impossible). Finding the witnesses and then arranging for a lawyer to prepare these affidavits to satisfy the court’s requisition adds unnecessary additional expense to the estate and delays probate.
Ironically in most cases this additional expense will exceed what it would have cost to have the will prepared and witnessed by a lawyer in the first place – as in the vast majority of cases where the will was drafted and witnessed by a lawyer and a second independent witness at the same law firm, the court will not issue such a requisition.
Failure to include specific clauses to ensure the will is not unintentionally revoked by law upon the occurrence of certain events You may intend to get married or divorced - if you fail to include a specific clauses in your will in this regard, part or all of your will may automatically be revoked by operation of law when your subsequent marriage or divorce occurs, even if you did not intend for this to be the case. Lack of understanding of the types of assets actually owned It is imperative to understand the types of assets you cannot leave to beneficiaries in your will – assets you may not realise you don’t actually personally own or cannot gift in your will include business assets, jointly held property, superannuation and assets held by companies and trusts – advice should be sought on the other options and methods available to ensure these assets do reach your intended beneficiaries or to ensure they are controlled by the people you wish to take over when you die. Lack of knowledge of the tax consequences to your estate and to your beneficiaries when gifting certain assets
It is important to obtain advice before different classes of assets (with different tax consequences) are gifted to specific beneficiaries so you are aware of when capital gains tax is payable by the estate. Unknown taxes may reduce the value of the estate and potentially also then reduce the share other beneficiaries were supposed to receive.
Missed opportunity to minimise tax for minor beneficiaries
A DIY will may result in unintended taxation liabilities for minor beneficiaries that could have been avoided by streaming income to minors via a testamentary trust in the will to take advantage of special tax rates for minors.
Excluding a beneficiary without receiving advice on the potential consequences
Who you wish to leave your assets to is your decision however in certain circumstances, a court can intervene and order that provision is made for certain family members if the court finds you have breached a 'moral duty' to make adequate provision for certain people. Generally according to law you have a moral obligation to provide adequately for your dependents including your spouse/de facto partner and your children (including step-children) – legally defined as ‘eligible beneficiaries’. If you exclude an eligible beneficiary, they may be entitled to make a family provision claim against your estate. If such a claim is made, before making an order for their provision from your estate the court must take into account certain factors including any reference in your will to the reasons for excluding that person.
Although there is no guaranteed way to ensure avoidance of a family provision claim, obtaining legal advice on what you need to consider when excluding beneficiaries may minimise the chance of such a challenge being successful.
The most important aspect of preparing a will is the advice you receive that is suited to your unique circumstances - something a DIY will can never provide.