Why do Lawyers dislike DIY will kits?
Despite contrary belief, it is not because they are cheap so people prefer to use them rather than engage a Lawyer to draft their will. As you read through the article, you’ll find that fixing DIY wills often results in significant legal fees being paid to a Lawyer, which is what people were avoiding in the first place!
Wills are very complex. While a DIY kit certainly does not make them look complex and a well-drafted will is clear and concise also making them appear simple, there is no one size fits all for a will. When you engage a Lawyer to draft your will, you are paying for the advice of how the current law applies to your specific circumstances and how to best plan for the future, taking into account your wishes and the many variable situations that may arise.
I don’t have a degree in dental science, but I can buy the products online needed to do my own filling to save paying a Dentist. Just because you can do it yourself, should you?
There has been an increasing number of legally invalid or deficient wills that have resulted in legal action before the courts and considerable legal fees being paid by the estate (and parties) in these litigations. Issues that may arise from DIY will include, but are not limited to;
- Gifting of jointly owned assets that cannot be gifted;
- Inaccurate or invalid execution of the will;
- An issue regarding the capacity of the testator;
- Conditions being placed on gifts (…”Sally can have the house but only if she leaves that husband of hers that I hate”…) which are either offensive or impossible to meet or enforce;
- Issues relating to children, taxation, superannuation that are not adequately covered;
- Incorrect description of gifts;
- The will has been completed (handwritten) by someone other than the testator, which can give rise to issues such as undue influence;
- Appointing inappropriate executors;
- The residuary estate is not effectively disposed of in the will resulting in Legislation determining the distribution of the remaining Estate.
- Failure to consider and protect against family application provisions;
- The explanation about the distribution of superannuation is ambiguous;
- The testator failing to dispose of their entire estate leading to a partial intestacy;
- Failure to deal with agreements such as to buy/sell, mutual wills, binding financial agreements, partnership agreements which need to be considered when drafting your will;
- Failure to deal with promises made throughout your life (even those made orally);
- The Testator making handwritten changes to the will which have not been witnessed or dated.
Where there is ambiguity, inconsistency or errors within a will an application to the court will need to be made to determine the proper construction or validity of the will. Your executor and or beneficiaries, who are probably still mourning your passing, then need to engage Lawyers to fix this. This is both emotionally and financially taxing on a person. Speaking for myself, I can state this is one of the reasons I do not like will kits!
Other factors I like to point out to people regarding will kits (apart from the above);
- Look for statements such as; this template is drafted by a Lawyer and you don’t need a Lawyer to draft a will. However, if you read the terms and conditions there is a disclaimer relating to the kit not provide legal advice, nor is it a substitute for legal advice. There is generally a further disclaimer relating to them not accept liability for loss and damage because of you using the kit.
- You are not being provided with legal advice. You are being provided with a template, which may or may not be correctly completed by you.
- The will kit is basic. It does not consider the many factors relevant to our modern lives, businesses and blended families.
- Superannuation does not automatically pass to your estate, you need to deal with it separately. Depending upon who you nominate to receive your superannuation, there may be tax implications.
- The consumer watchdog “Choice” reviewed several DIY will kits and noted, they were often confusing and had basic instructions contained within.
So, why don’t Lawyers like DIY will kits? I can’t speak for the whole legal fraternity, but some of my reasons are as follows;
- People are making a document when they don’t understand the law surrounding their decisions and if they can even make that direction. It’s your assets! You need to know what the laws are and understand them;
- The wills that come out of these kits are ambiguous, can be misinterpreted and therefore challenged, or even worse, are invalid;
- The emotional and financial strain on the family/friends left to deal with the will could not come at a worse time!
- If the will cannot be fixed, the deceased will be deemed to die intestate (which means without a will) which reverts to the state succession law for the distribution of the assets; and
- Lastly, the expense to fix them eats into the estate and beneficiaries share of the estate reduces, which is not what the Testator wanted or intended.
At the end of the day, while will kits are cheap, they inevitably are very risky. They often result in Lawyers being paid legal fees potentially totalling many thousands of dollars to fix them, rather than comparable, the small fee associated with engaging a Lawyer for estate planning in the first place. As the old saying goes, you get what you pay for!