Think You Can Write Your Own Will? 6 Reasons to Reconsider

Thinking about writing your own Will to save some time and money? It’s a common thought, but it’s often a decision that can lead to problems down the track for your loved ones. While the idea of a simple, do-it-yourself Will might seem appealing, the reality is that the law surrounding Wills is complex and unforgiving of mistakes.

A Will is a legal document that instructs how your assets (your ‘estate’) will be distributed after you die. It’s more than just a list of who gets what; it’s a legal instrument with specific requirements that must be met to be considered valid. If your Will doesn’t meet these requirements, it can be challenged in court and deemed invalid. This can cause immense stress, financial cost, and heartache for your family at an already difficult time.

What Are the Risks of DIY Wills?

The potential issues with DIY Wills often stem from a lack of legal expertise and not taking a holistic approach to individual circumstances.

Here are some common pitfalls:

• Invalidity: For a Will to be valid, it must meet certain criteria. It needs to be in writing, signed by you (the ‘testator’), and your signature witnessed by two people who are not beneficiaries in the Will. If you miss any of these steps, or if the witnesses are also set to inherit something, your Will could be declared invalid.

• Ambiguous wording: A Will must be clear and unambiguous. Using vague language like ‘my best friend’ or ‘the house’ can lead to disputes. Who is your best friend? Which house are you referring to if you own more than one? These ambiguities can force your family to go to court to get a judge to interpret your intentions, which is an expensive and time-consuming process.

• Forgetting to appoint an executor: The executor is the person responsible for carrying out the instructions in your Will. They handle the administration of your estate, which includes things like paying off debts and distributing assets. Without appointing an executor, the process of administering your estate can be significantly delayed and complicated.

• Not providing for contingencies: A well-structured Will should provide for a range of ‘what if’ circumstances. For example, what happens if a beneficiary dies before you, or what happens if you no longer own an asset that you have gifted to a beneficiary?

• Failing to account for all assets: A DIY Will might not properly account for all your assets, especially complex ones like superannuation or assets held in trusts. Superannuation, for example, is generally not automatically included in your Will and requires a separate binding death benefit nomination. If you don’t know this, a significant asset could be distributed in a way you didn’t intend.

• Inadequate provisions for dependents: Legislation across different jurisdictions in Australia allows certain people to challenge a Will if they believe they have not been adequately provided for. This is often the case for spouses, children, or other financial dependents. A lawyer can help you draft a Will that minimises the risk of a successful challenge by these people. They can help you understand your legal obligations and structure your Will in a way that is less likely to be contested.

What Are the Benefits of Using a Lawyer to Prepare a Will?

Every person’s situation is unique. A lawyer can draft a Will that is tailored to your specific circumstances, ensuring it reflects your wishes and protects your loved ones.

• Legal expertise and validity: A lawyer knows what is required to make a Will legally binding and will ensure all formalities are met, reducing the risk of a successful challenge.

• Clear and precise language: Lawyers are trained to use specific legal language that removes room for misinterpretation. This can help prevent disputes and ensure your wishes are carried out as you intend.

• Comprehensive advice: A lawyer will consider all aspects of your estate, including your superannuation, trusts, and other complex assets. They’ll also help you consider potential issues you may not have thought of.

• Minimising family disputes: A professionally drafted Will can help prevent family arguments and court battles by clearly stating your intentions. It removes the ambiguity that often fuels disputes.

Key Takeaways

Writing your own Will may seem like a simple and cost-effective solution, but the potential risks are significant. A poorly drafted Will can lead to legal challenges, family disputes, and may even be deemed invalid. Engaging a lawyer to prepare your Will is a small investment that provides peace of mind, knowing that your final wishes will be carried out correctly and that your loved ones are protected. This is general information only, and we recommend obtaining professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please call 07 3281 6644 or email mail@powerlegal.com.au.