Things to consider before using a do-it-yourself will kit

A DIY will kit can save you an upfront cost of a few hundred dollars at least – but if you think this is bad news for lawyers, think again.

While some people have a straightforward experience with wills kits, Baker, Deane & Nutt (BDN) Lawyers partner Lorraine White says they can end up costing you a lot more in the long run.

“When people sit down and say ‘this is what I want to happen with my estate’, it’s easy to miss a detail that provides legal certainty for a will. They could end up with an invalid or partially invalid will and not even know it,” she says.

“That’s because there are several potential pitfalls these do-it-yourself wills do not account for.

“Even a minor ambiguity can necessitate court intervention, and that can be costly.”

An application for a grant of probate over a standard, non-contested generally is approved by a registrar, and the executor can then administer the estate. However, ambiguity of any kind may require those involved to apply for guidance and interpretation from the court. The simplest oversight can end up being eye-wateringly expensive.

“If you have to involve the court in interpreting what the testator intended, it could escalate costs by $20,000 to $30,000,” Ms White says.

“If you have to go to court because there are competing assertions about what the will means, you may spend much more.”

The issues to be considered when making a will are diverse, even for a person with a seemingly straightforward estate.

For example, confusion can arise around the jurisdiction of certain assets, or even what assets are covered by a will.

“People may not fully appreciate what’s actually considered part of the estate – things like superannuation, life insurance and joint assets for example are generally not part of an estate,” she says.

“They may also not fully appreciate the effect of the location on their assets because the law as it relates to estates is very different in each state and territory. It’s important to understand how and where your assets are held.”

The risks are increased for people with more complicated estates.

“We lead complex lives these days. For example, many of the people we see these days are part of a blended family and may have children from previous relationships,” Ms White says.

“DIY wills don’t generally deal with the sorts of issues that can commonly arise in those circumstances, to ensure the assets are protected and gifted as intended.”

A reliable will can also deal with contingencies – something a DIY will won’t necessarily cover.

“People don’t often contemplate what happens if circumstances as outlined in your will change. For example, if your executor or any of your beneficiaries pass away before you,” she says.

“In those circumstances, because of the way those wills are crafted, gift provisions may fail entirely. There is also a risk that the gift ultimately ends up with the government.

“You can’t control things from the grave. You need to appoint a person you trust to act in the best interests of your beneficiaries and give thought to what happens if that person dies before you.”

Further complications arise when people hand amend a will. Depending on what the change is, and how it has been witnessed, this can partially or fully invalidate a will.

“If it isn’t clear what the testator actually intended, then you may need to commence proceedings in the court for guidance and that will escalate your legal costs,” Ms White says.

There are many cases where DIY wills have been administered smoothly. But no matter how you slice it, if there’s a shadow of doubt that your will is airtight, seeking advice from a qualified lawyer is a very sensible investment.

“Generally, the costs of any dispute or proceedings in court comes out of the estate. So, the more costs are incurred, the less there is for your beneficiaries,” Ms White says.

“And that’s a waste of estate assets that should go to the people the testator intended.”

For expert advice on wills and estates, contact Baker Deane & Nutt Lawyers.

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