Think you’re sorted if you prepared your own Will using a Will-kit from the newsagency, or one you downloaded from the internet, or one you’ve freestyled and typed up yourself? Think again!
If you don’t complete a Will correctly, you may cause more of a burden for your family than if you’d passed away without a Will.
Yes, you might be able to do a DIY bathroom renovation and save money, but unless you know exactly what you’re doing, you might end up with a dodgy outcome. Same goes for a Will. Too often we hear of people avoiding getting an estate planning lawyer to prepare their Will because “it’s too expensive and I can do it myself”. Unless you know exactly what you’re doing, you might end up with a dodgy outcome in the form of an invalid Will, known as an informal Will.
Not only are there restrictions on how you deal with certain assets in a Will (e.g. superannuation and joint assets), there’re also specific formal requirements set out in legislation that you need to meet for a Will to be valid. Not preparing a Will with a specialist increases the chance of you having an informal Will, which is a burden for your family and loved ones left behind.
For example, with an informal Will, after you pass away your family will need to apply to a court to ask that the formal requirements of the legislation be dispensed with and, importantly, declare that the document you drafted is to be considered your “last Will”. This court process is time-consuming and can be very expensive compared to the amount it would’ve cost to get the Will done properly in the first place.
When an application to dispense with the formal requirements of a Will is made, the court takes into account a range of evidence including the manner in which the “Will document” was executed and any evidence of the testamentary intention of the deceased, such as statements made by the deceased to other people. Evidence of your testamentary intentions can be difficult to prove as it’ll often require numerous complicated affidavits setting out what you said to whom, about things to happen after your death. All of this adds to the time and expense to be borne by your family dealing with your informal Will.
Additionally, if your informal Will is contested, for example, by someone you didn’t want to benefit from your Will, the application to court will become more delayed and expensive. There’s also a greater risk that the people you did want to benefit will miss out because the court decides your DIY Will isn’t to be considered your last Will, and your assets will be distributed in a way you might not have wanted.
What should you do?
Take your Will seriously and get the job done by a professional for the right outcome. Otherwise, your family and other beneficiaries are likely to end up in court in an anxious, time-consuming and expensive exercise having your DIY Will sorted out.
Get in touch now with Michelle Gold and the Wills and Estates Planning Team at Meyer Vandenberg.
Michelle Gold is the Senior Associate in Wills, Estate Planning and Estate Litigation. Michelle is a former member of the Elder Law Committee and current member of the Estate Planning Group of the ACT Law Society.
For more information contact the Estate Planning Team:
(02) 6279 4464 Michelle.Gold@MVLawyers.com.au
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