23rd April 2024

Will you regret your Will-kit?

“I am too busy.”

“My estate isn’t going to be complex.”

“I can’t afford it”

These are just some of the reasons why people avoid seeking legal advice when getting their affairs in order and opt instead for a Will kit. Readily available at a local Post Office and now, online, Will kits present themselves as a cheap and simple option.

Whilst there is no denying the cost advantage, Will kits can be far more troublesome than they appear.

Many people do not consider that these documents are still subject to stringent legislative requirements in order to be valid and mistakes are often made by the will-maker.  As a result, their estate may incur costs in rectifying problems with the document and their estate may not be disposed of as they had originally intended.

Common Will-kit problems

Difficulties that may be encountered with obtaining a Grant of Probate for a Will-kit Will can include:

  • If the testator has not signed the Will properly in accordance with the requirements of the Wills Act 1997. There are strict requirements that need to be adhered to when a Will is signed, including the attestation by witnesses. Whilst this issue can be overcome in some instances, it commonly presents a problem for home-made Wills include those made by kit.
  • Stapling or attaching other important documents to a Will kit. If there are any indents on a Will (such as paper clip marks or removed staples), the Court may likely request further information as to what other documents were annexed to the document, and these documents may become a matter of public record.
  • Failing to appoint a substitute executor if your nominated executor cannot act.
  • Failing to dispose of your assets properly.
  • Not knowing which of your assets fall under the scope of your Will and which assets do not form part of your estate.
  • Executors being required to procure evidence from the witnesses to the Will after you pass away to establish how it was prepared and executed.

Dealing with complex estates and circumstances

Notwithstanding the above, there are certain instances where it may be completely unsuitable to use a Will kit due to your circumstances.  Using a lawyer to prepare and execute a Will not only ensures it will be executed in compliance with the legislation, but provides you with the opportunity to receive essential advice around your estate planning decisions.

These situations include:

i. Blended Families

In situations where someone has been previously married or in a de-facto relationship which produced children, it is prudent to seek legal advice to balance the competing needs and to minimise the risk of future claims against your estate.

ii. Gift over clauses

In circumstances where the residuary estate is to be distributed to one person and that person dies before you, without appropriate planning the gift may fail and could be distributed in accordance with intestacy laws.

iii. Superannuation

Superannuation does not necessarily form part of your estate. Careful planning is required to ensure your superannuation benefits are directed as you intend.

iv. Guardians of minor children

Some Will kits do not include any clauses regarding the appointment of guardians for minor children and your wishes may not otherwise be formally recorded

v. Companies and trusts

If you have hold office, operate a business or have assets in a corporate structure or trust, it is appropriate that you seek legal advice to safeguard the succession planning of your business, assets and/or trust.

vi. Effects of marriage and divorce

If you are in the process of getting married or divorced, you should review your Will and estate planning. You can make a Will in contemplation of marriage but there are instances where your marriage will revoke a Will that you have made. Likewise, a divorce may revoke parts of your Will and careful review is essential.

For advice regarding Wills and estate, no matter how simple or complex, we are happy to assist. Please contact our office to discuss on 03 9646 4477.

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