• WORDS Hannah Smith - Lawyer

Do it Yourself WILLS - Cheap Solution or Expensive Problem?

A will is a legal document that expresses how the will-maker intends their property to be distributed upon their death. Regardless of wealth, a will is an important component of estate and financial planning to ensure a legal transition of your assets to your intended recipients.

Recognising the importance of having a will, many people turn to “cheap” solutions such as ‘at home will kits’ without obtaining legal advice. However, seeking a "cheap" method now may be more costly to your estate.

In NSW, the Succession Act 2006 identifies specific requirements to create a valid will. The will is to be in writing, signed by the will-maker in the presence of two witnesses, and signed by those witnesses. Without proper execution, the person seeking to use the document as a will must satisfy the Supreme Court that the document records your testamentary intentions and should be treated as your valid legal will and should operate as a will. It isn't guaranteed the Court will find an informal will to be valid.

The will should also appoint an executor(s). Broadly speaking, an executor is the person responsible for administering your estate in accordance with your testamentary instructions. If your will doesn't appoint an executor, the responsibility may fall to a Court-appointed administrator using the process “Letters of Administration”.

It is important that any will is unambiguous to ensure your wishes are fulfilled. An example of ambiguity is demonstrated in the case Brown v Hill [2012] NSWSC 464. One of the issues considered by the NSW Supreme Court was whether the deceased, who stated in her home-made will “I give to [my son] all my worldly goods providing he does not give his immediate family anything. He is to live his life out in my home and divide what he wishes among my children and grandchildren” intended the term “goods” to mean only personal goods or the deceased's whole estate.

The Court concluded that as she stated “not give his immediate family anything”, she intended “anything” to include her home. Logically, this must have meant the deceased intended her home as part of her “worldly goods”, and therefore the will disposed of all the deceased's estate. For various reasons, however, the Court ordered the parties’ legal costs be paid from the estate; consequently, an expensive exercise.

A homemade will kit may be signed and witnessed appropriately with the wording achieving the desired intention, but often homemade wills fail to adequately address the individual will-maker's unique circumstances. Most people's family and financial arrangements do not fall into a 'one-size-fits-all' category. Complex legal principles may apply to people's circumstances without their knowledge, including survivorship rights for jointly held assets, eligibility criteria in blended families, taxation consequences, and the payment of superannuation interests.

Superannuation, for example, does not automatically form part of your estate when you die and therefore not generally subject to the terms of your will. Your superannuation and any associated death benefit insurance may form a significant part of your asset base, so it's important you know how it will be dealt with after your death so you can plan accordingly. Will kits lack the sophistication required to ensure your superannuation is handled correctly.

If you don’t have a will, are unsure whether your will meets your needs, or wish to ensure you have a legally valid will, it's important you obtain legal advice. Having an experienced lawyer assist you means you can ensure that your personal needs are considered to tailor a will specific to your circumstances. You can have peace of mind knowing that your will is valid and legally effective.

Hannah is based in the Newcastle office and practices in the areas of will, probate, estate administration, inheritance law and contested estates.

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