Do it yourself “legal” Wills (“DIY Wills”) have been available for some time. They have potentially catastrophic effects and in short are incredibly dangerous. Whilst this article may seem self serving I would like to note from the outset that I am not for one minute saying that I am the only lawyer who is able to properly prepare Wills. There are many law firms on the Peninsula and surrounding districts who are able to prepare a Will. The purpose of this article is not to scare you into calling me or one of my colleagues. It is to educate you about the dangers of DIY wills. DIY Wills provide lucrative work for the litigation side of a law firm.
A “legal” Will can be purchased in pro forma from your local post office, newsagent and even online. I have seen them priced as low as “$19.95”. Why would anyone in their right mind pay a lawyer hundreds of dollars to prepare the same document? The legality or otherwise of the Will is no longer a major consideration after the Succession Act 1981 (Qld) was amended in 2006 greatly relaxing the formalities in relation to wills. The truth told, a pro forma document does not need to be purchased for a will to be “legal”. Problems arise when the Will Maker (or you the reader) provides the content of their will and fails to give effect to their wishes because they don’t understand the potential claims that might be brought against their estate and don’t understand their asset structure. I am not suggesting that the reader is unsophisticated, unintelligent or outright stupid. I see many clients who don’t know the value of many of their assets, how they are held, and are often unaware that assets such as their superannuation and that property held as joint tenants does not form part of their estate.
When taking instructions in relation to your will any competent lawyer will obtain full details of your family tree, asset and liabilities and then talk to you about what you want to achieve in your will, how you want to leave your estate. Potential claims against your will should also be discussed at the initial interview and minimisation measures put in place where available.
I don’t question you because I am a gossip and need more stories for the next Saturday afternoon barbeque (obviously any information you provide is covered by client confidentiality). I ask because they provide me with information that will protect the integrity of your will after you pass away on two fronts. Firstly, my notes in relation to your knowledge and understanding of what a will is, your family tree, and knowledge of your assets will assist your executors in defending any claim against your will on the basis that you lack capacity to make your will. Secondly, it allows me to speak with you about your asset structure and your intended beneficiaries; it might be that one of your intended beneficiaries is disabled, a spendthrift, or in a high risk profession amongst other things. It may be appropriate to discuss the establishment of a trust to protect those beneficiaries against creditors, the Family Court and provide taxation advantages. Wills have the ability to be the gift that keeps on giving long after you have met your maker if that is your intention.
Unfortunately, I have come across DIY wills that have attempted to deal with assets that do not form part of the estate and left disappointed beneficiaries behind whose only recourse is costly litigation and in some extreme cases no recourse is available at all despite the Will Maker’s good intentions. On other occasions Wills have not adequately dealt with the entire estate and a formula set out in the Succession Act 1981 (Qld) is applied. The effect of the application of that formula often results in persons, whom the Will Maker intended to exclude, receiving a sizable inheritance by default.
The saving of what might only be a few hundred dollars pales into insignificance when compared to costly applications to the court, litigation and emotional disaster that eventuates when DIY wills go wrong . The bottom line is that you pay for what you get. A Will for $19.95 is inferior to a properly drafted will prepared by a Lawyer.
I might be doing myself a disservice by trying to educate people about these dangers (I will have fewer litigation jobs). I believe I have a duty as a lawyer to attempt to impart some of my knowledge by educating the general public. I hope this article goes someway to achieving that end.
Daniel Hutchinson LLB, BBus (HRM)
Daniel Hutchinson is a lawyer employed by Clubhouse Sponsor Cooke & Hutchinson Lawyers. If you have any questions in relation to the content of this article do not hesitate to contact Daniel on 3284 9433 or by email daniel@cookehutchinson.com.au
This article is the writer’s opinion in relation to general legal matters. It is a general opinion only and should not be relied upon for the preparation of legal documents. You should take independent legal advice before making any decision in relation to your Will or your estate planning. The writer disclaims any liability for any loss you may suffer as a result of your reliance on this article.
