Now and then, we get enquiries from people who instead of having us draft their Will, want us to review a Will Kit they have purchased from somewhere like the Post Office or online to make sure it has been completed correctly.
Unfortunately, we almost always find errors.
Will Kits are seen as a cheap alternative to having your document drafted by an appropriately qualified Solicitor, and usually take the form of a pre-filled template Will into which a person inserts their personal details and selects from a number of options as to how their Executors are to be appointed and/or how their Estate is to be distributed.
The problem is, unless you understand what the many different paragraphs, options and different wordings mean, you are flying blind.
For example, if you tick the wrong box when nominating an Executor you might end up with someone you never intended being in charge with executing your Will.
We have seen clients in the past end up in far more precarious positions as a result of Will Kits gone bad.
For example, in one scenario a husband has purchased a Will Kit from the Post Office and filled it out himself. He had assumed that irrespective of what was written in the Will Kit, his Estate would automatically pass to his wife, so all he needed to do was to write down what he wanted to do with his assets after his wife died – which was to leave it to his children in equal shares.
Instead of ticking the box that said he wanted to leave his Estate to his wife in the first instance and to his children once both he and his wife were deceased, he essentially gave his whole Estate to his children immediately upon his death and left his wife out of his Will.
Now, had the husband and wife owned their assets jointly, there would have been a simple fix because the laws of co-ownership would have dictated that jointly owned assets pass to the wife irrespective of what was in the husband’s Will. However, as is often the case with older clients, the family home was held in the father’s name only. Technically speaking, this meant that the husband had left the family home in which his wife had lived for 50 years to his three children and completely left her out of his Will inadvertently.
Three of the deceased’s four children saw that this was an obvious error and happily signed the family home over to their mum, but the fourth child was a harder nut to crack.
Luckily we were able to convince the fourth child that the mother could approach the Court seeking rectification of the Will or making a family provision claim to retain the home, so the matter settled without the need for Court proceedings.
Had the fourth child resisted however, and sought to enforce what was written in the home made Will, the Estate would have been exposed to tens of thousands of dollars in legal costs with no guarantee (but a very high likelihood) that the family home would have been returned to the mother.
This is an extreme example, but as you can see Will Kits can be fraught with difficulty and the money you save now may be outstripped exponentially by the costs of rectifying any mistakes down the track.
You should always have your Will prepared by an appropriately qualified Solicitor, even if you think your circumstances are simple.
If you have questions about writing a Will, contact us today for an obligation free discussion to see if we can help.
Daniel McKinnon
Since graduating with two degrees in Law and Commerce from the University of Wollongong, Daniel’s spent over ten years solving a wide range of legal problems for the people of Western Sydney.