While it is possible to create a Will without a lawyer by using online resources or DIY kits (which for the purposes of this article will both be referred to as ‘homemade Wills’), it is important to consider the potential drawbacks of this approach. A Will is a critical legal document, and errors or omissions can have significant consequences for your loved ones.

For the vast majority of people, the risks of unintentionally ‘getting it wrong’ with a homemade Will far outweigh the cost of going to a specialist Estate Planning lawyer, and having it done right.

Why you need a valid Will

A valid Will ensures your assets are distributed according to your wishes and appoints a trusted executor to manage your affairs when you die. Without a Will, your family may face delays, increased costs, and emotional distress.

With a valid Will your executor can apply for probate (if required) and administer your estate according to the provisions contained in your Will.

Without a valid Will, the distribution of your assets and finalisation of your affairs will likely be delayed. Your family may need to apply to the court for letters of administration and face increased legal and court costs. Your estate will be administered according to a statutory formula which may not take into account your real wishes.

The benefits of using a lawyer to prepare your Will

It is all too common for someone to feel that ‘my situation is simple’. But every person’s circumstances – family dynamics, the nature of assets owned, and the person’s wishes – are unique. . There is no one-size-fits-all approach, so a generic form or template will not be appropriate for all situations. Worst of all, the person making the homemade Will will often not realise the deficiencies of the document, and the issues that arise only become apparent after the person’s death.

Here’s why seeking legal advice about your Will is advisable:

Ensuring your Will is effective and valid

For a Will to be valid, certain legal formalities must be met. If the Will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die.

Writing on your Will after it is made, stapling documents to it, or making any changes are all things that can raise issues or invalidate the Will and render it partially or completely ineffective. Lawyers are well aware of this.

Ensuring the Will is worded correctly

A Will that does not effectively deal with all your assets or has ambiguous language can open the doorway to all sorts of uncertainties and disputes.

A simple, but all to common example: John makes a homemade Will, in which he gives ‘my property’ to his daughter and ‘the rest of my estate’ to his son. What John doesn’t realise is that the legal meaning of ‘property’ is wider than just real estate, and the wording of the Will risks a dispute where the daughter claims to be entitled to John’s personal property as well as real estate, leaving the son with nothing.

A dispute about the interpretation of a Will’s wording can cost hundreds of thousands of dollars. Indeed, even where the parties aren’t in dispute but just need the court to assist in interpreting the wording of the will, the cost will usually be several tens of thousands of dollars.

In short, the cost to the estate of even the smallest ambiguity will be far greater than the cost savings of a homemade Will as compared to seeing a lawyer.

Certified copies and safe storage

Most lawyers will store your original Will securely, free of charge, and provide certified copies, safeguarding against loss or damage.

Even if you decide to keep your original Will, your lawyer will keep records and copies of the Will which can be useful if you subsequently lose the original or your family cannot find it after you die. In such cases, your family may be able to request the court to look at the copy of the Will and allow the wishes in that Will to stand.

“You Don’t Know What You Don’t Know”

Just as John’s assumptions in the example above could have been easily corrected if he had seen a lawyer, there are numerous ways in which a person could form initial views of how they want their estate to pass, which may have consequences the person never considered and which could have been avoided with proper legal advice. Examples include

• Thinking a gift of similarly valued properties to different children represents an equal gift, when in fact one of the properties may have a huge capital gains tax exposure while the other does not.
• Giving certain assets in equal shares to children, without realising the conflict that can arise when those children grow up, get married and have their own families and different priorities whilst being stuck in a co-ownership with their sibling.
• Homemade Wills where an asset is given to a beneficiary, but an important part of the estate necessary for that asset to be effectively run is not mentioned and so falls into ‘residue’ and therefore to the other beneficiaries. For example if a farming property is given to one child, and the residue to the other children – but the machinery and cattle related to the farm are in fact owned in a private company. If the Will doesn’t specifically give the shares in the company to the first child, it will pass to the other children which the Willmaker may not have wanted.

Another common example is superannuation, which depending on the terms of the super fund’s trust deed, and whether or not there is a valid binding death benefit nomination in place, could potentially bypass the estate altogether and be distributed in a way the deceased did not intend. Further, there are many times where a person has lodged an invalid death benefit nomination with their super fund (for example one that names a non-dependant such as a parent or a sibling) and have never realised that the super fund would not follow that nomination in the event of their death.

Considering your unique circumstances

Family dynamics and financial situations can evolve so addressing your present and future needs within your family is essential. A lawyer can consider your personal circumstances, family structure and financial position to prepare a Will that effectively sets out your testamentary wishes.

Blended families often have unique estate planning needs. When creating your Will, you may need to consider how you wish to provide for children from previous relationships, and how your current partner may want to provide for their children. Sometimes, an ‘irrevocable will’ may assist in balancing the needs of both sides of the blended family. Irrevocable wills require very careful drafting and consideration of advice, so you should only discuss such an option with an experienced estate planning lawyer.

If you have minor children or vulnerable beneficiaries, they might need special consideration. By openly discussing your wishes and objectives with your lawyer, they can help you craft a Will that reflects your intentions and minimises potential conflicts. This includes exploring options like staggered inheritances and testamentary trusts.

Dealing with business interests

Owning a business adds complexity to making a Will and planning your estate. You will need to ensure that your business interests are adequately dealt with, whether you wish to hand the business down after you die or want it sold or dissolved. An experienced estate planning lawyer can help with a business succession plan that meets your needs.

Conclusion

To recap, the key benefits of engaging an experienced estate planning lawyer to help with your Will include:

• Ensuring your Will is valid: Lawyers, and particularly those experienced in estate planning, are trained to write valid Wills that meet all the legal formalities, minimising the risk of it being contested.
• Addressing complexities: An estate planning lawyer can help navigate complex issues such as blended families, vulnerable beneficiaries and business ownership. They can advise on testamentary trusts and business succession planning.
• Minimising disputes: By considering your unique circumstances and family dynamics, a lawyer can help prepare a Will that clearly outlines your wishes, reducing the potential for disputes among beneficiaries.
• Expert advice: Experienced estate planning lawyers can provide comprehensive tailored advice that also considers other estate planning issues like trusts, powers of attorney and enduring guardianship.

Somerville Legal’s wills and estates team consists of highly experienced estate planning lawyers, headed up by Stephen Lynch who is a Law Society Accredited Specialist in wills & estates, and recognised by Doyles List as a recommended estate planning solicitor.

This information is general in nature and does not constitute professional advice. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9923 2321 or email enquiries@somervillelegal.com.au.