It is widely accepted that the cost of having a specialist solicitor prepare your will can vary and in some cases, can be expensive. This has prompted some people to consider alternatives, such as writing their own or using one of the widely available ‘do it yourself’ will kits.
As a firm specialising in deceased estates, we have dealt with a number of homemade wills over the years and have encountered many issues. Some of our experiences are highlighted in the stories below.
Bob had a will drafted by a family member who had some legal training. The will was emailed to Bob who printed it and had it signed and witnessed. Some years later, Bob died and the homemade will came into effect.
A grant of Probate was needed for Bob’s estate. A grant of Probate is official confirmation from the Supreme Court that the will is the last will of the deceased and confirms that the executors are the persons legally entitled to administer the estate. Probate is required by many organisations such as the Lands Titles Office, banks, and share registries to transfer estate assets to beneficiaries.
In Bob’s case, the problem was that Bob’s will had never been dated. Although this did not make the will entirely invalid, it became much more difficult to prove to the Court that this was indeed his last will.
As a result of the error, enquiries had to be made with the family member who prepared the will. Emails were traced back to give an indication of the likely date of the will and an affidavit (a statement sworn on oath or affirmed to be true) had to be prepared and sworn to satisfy the Court of the approximate date the will was executed.
The steps required to be taken to rectify the will cost far more than it would have cost to have the will professionally prepared by a Solicitor who specialises in wills in the first place.
Pam bought a will kit, wrote out her wishes and had the will signed, dated and witnessed. 10 years later Pam died and the executor sought legal assistance to make an application for a grant of Probate which was required to release a bond held by the nursing home where the deceased spent the last few years of her life.
What many people don’t realise is that there are strict legal requirements to follow for a will be held as valid by the Court, including that the will maker and the witnesses were all present at the same time when the will was signed.
In Pam’s case, the will had been signed by the two witnesses using different coloured pens, with one witness signing in blue pen and the other in black pen. Where different colour pens are used the Court questions whether the will maker and witnesses were actually all together at the same time when the will was signed.
To resolve this issue the witnesses from 10 years ago had to be traced and contacted, asked of their recollection of events and were required to swear an affidavit to provide evidence to the Court. Again, all of this cost much more than it would have cost for a Solicitor to prepare the will.
If Pam’s witnesses confirmed they weren’t all together when the will was signed this would have made the will invalid. In those circumstances, the ‘intestacy rules’ would apply to the distribution of the assets of the estate and this could have led to a result which Pam did not want or intend, as well as increased costs and delays in administering the estate. An important part of a Solicitor’s job is to ensure the will is properly executed and this does not always happen when legal will kits are used.
Inaccurate or contradictory wording is one of the biggest issues when will makers write their own wills. Examples of poorly worded wills are numerous and often involve costly Court cases to rectify. Lawyers study and train for many years to ensure their drafting of wills does not cause any unexpected issues.
Hannah’s case is a good example. Hannah lived in the country and owned approximately 144 acres of land. She left a will prepared by her son William on her instructions which stated, “I give devise and bequeath unto William Leaf 40 acres of land situated in the parish of Waaia being part of 140 land I also give devise and bequeath unto my grandchildren the remaining hundred acres” (Donaldson v Leaf  VLR 278).
The Court determined that Hannah intended to give a particular 40 acres to William and as it was impossible to determine from the will or other evidence which 40 acres she intended to give to him, the gift in her will failed for uncertainty. Similarly, the gift of the one hundred acres to the grandchildren also failed for uncertainty. As Hannah’s will was found to not properly deal with her real estate, it was determined that she died intestate and the ‘intestacy rules’ applied.
The result was that her two children became the beneficiaries of her estate and the grandchildren, who had previously been left the bulk of the real estate in her will, received nothing. A Solicitor would have included a specific description of the land which was to be gifted to William and a description of the land to be gifted to the grandchildren, thus providing certainty. This would have meant the gifts in the Will would have been valid and the wishes of Hannah would have stood.
The language and wording used in any will needs to be carefully considered to ensure it meets criteria set by the Court. We see many examples where incorrect or clumsy wording renders the will invalid or means part of a will isn’t upheld.
Megan had recently divorced from her husband and they had a young son Ben together. Soon after the divorce when money was tight she made a homemade will appointing her parents as the executors and naming her son Ben as the sole beneficiary. This meant that her parents would act as trustees of her estate and look after the assets until Ben became an adult at age 18. Megan did not want her ex-husband to manage financial matters as there was concern he would not manage the finances well. Ben was also the sole beneficiary of Megan’s $1 million life insurance policy.
Some years later when she wisely decided to seek professional assistance, she was horrified to find out that the life insurance would not have passed under the terms of her will, it would have passed to Ben pursuant to the policy. As Ben was under 18 his parent or guardian would be required to manage the life insurance proceeds until Ben became an adult. This, of course, would have been her ex-husband (Ben’s father) rather than her parents who she had named as the executors and trustees in her will to avoid that exact scenario.
When you engage a specialist Solicitor to draft your will, they will also make sure other non-estate assets you might hold such as life insurance and superannuation are properly dealt with.
Failure to seek proper advice means people are often unaware of the actual outcome of where their assets will end up when they die, and once they have died it’s too late to rectify the issues.
Geoff had no children and had never married. He made a homemade will and told his nephew Sean that he was the sole beneficiary and instructed him where the will could be found in the event of his death.
When Geoff died the homemade will could not be found, meaning that Geoff died intestate (without a valid Will). The beneficiary under the ‘intestacy rules’ was Geoff’s surviving sister who was Sean’s Aunt.
The presumption was made by the Court that Geoff had destroyed his homemade will because he no longer wanted it to apply. Of course, Geoff was no longer here to confirm this so Sean missed out.
A benefit of using a Solicitor is that they can retain your original will in a deed safe. Mellor Olsson offers this service to all clients who make wills with us at no extra cost, giving you peace of mind that your will is kept safe until the time it is needed.
The stories above highlight how very simple errors when making your own will can result in costly legal bills. More importantly, there is a significant risk that the will maker’s wishes may not be fulfilled, which can cause additional distress at what is already a difficult time on the death of a loved one.
Engaging a Solicitor who specialises in wills and estate planning might seem like an expensive process if you think of it as just as a simple document. The truth is what you are paying for is not only the Solicitor’s expert knowledge but the guidance on what to consider and how to best structure your affairs. This will give you comfort that when your time comes you have left a clear reflection of your wishes and no mess to clean up.
If you need some guidance on making sure your wishes will be carried out on your death, contact one of the experienced Solicitors in Mellor Olsson’s Wills and Estates team who can assist you.
This article was written by Senior Associate, Kerry Miller.
Practice Area: Wills & Estates