A key benefit of having a valid Will in place is that it provides a person with the peace of mind that comes from knowing their estate will be distributed according to their wishes. Unfortunately, some people are often discouraged by the cost associated with a solicitor preparing their Will.
We have seen more people now turning to DIY Will kits, which at first sight appear to be a more affordable option – they are cheaper, less time consuming and seem to be an easy fix for a ‘simple’ Will, however, the disadvantages and implications of errors in these types of DIY documents far outweigh any savings in cost or time. In fact, the legal dispute can be financially and emotionally draining for those you leave behind.
There is no substitute for proper advice from a qualified lawyer, no matter how straightforward you think your affairs may be. Here is why you should seek legal advice on writing a Will.
1. Your affairs are more complicated than you think, no matter the size of your estate. Even a very ‘basic’ Will can result in a lengthy legal dispute if your Will is not prepared correctly.
2. Your words can be misconstrued and create ambiguity. Instructions that may seem clear and obvious to you, may be confusing to future readers of your Will, including a Judge who does not have the insight into your personal matters.
3. You can have more control over who is to be excluded from your Will. Whilst you cannot remove someone’s right to contest a Will, your solicitor can give advice on how best to deal with your assets so that, in the event your Will is challenged, the risk of a Part IV claim is minimised. In addition, there are strategic ways to minimise the prospect of a claim being brought against your estate.
4. There is more control over your wishes: any allegations of duress or mental incapacity will generally be more difficult to rebut if a qualified lawyer has not been engaged in the Will-making process.
5. The most common error in homemade Wills is the signing and witnessing of Wills. Each jurisdiction in Australia has specific legislation in relation to this. An error in the signing or witnessing of your Will can increase the costs of obtaining probate or even invalidate your Will.
6. Receiving advice in relation to the role of the executor and trustee of your will is important. Simply appointing a family member is not necessarily appropriate.
7. A properly drafted will can create tax and asset-protection advantages for beneficiaries. Tax and Succession laws are extensive. It may be difficult to appropriately deal with your assets in a way that considers all tax implications.
Using a lawyer to prepare your Will and advise on estate planning is a small price to pay to protect your wealth and ensure your wishes are adhered to after you pass away. The dangers of DIY Wills are extensive and can lead to increased costs in the administration of estate, unforeseen tax implications and painful and lengthy applications to the Supreme Court during a period of deep grief.
At Ferraro & Singh, we have experienced solicitors that are able to assist you with the Will-making process. For more information, please contact our office. You can also read more here:
https://www.theguardian.com/money/2015/feb/09/dangers-diy-wills-mistakes
