Battle of the Wills - Legally Drafted Wills vs DIY Will Kits

This article discusses the importance of understanding how Wills are considered valid by the Courts and particularly what can go wrong if you do not have a carefully drafted Will.

In the battle of the carefully drafted legal Will verse a DIY home Will kit, we can say with some confidence that the winner takes all.  

This has been a hot topic of late, given the Covid-19 pandemic, escalated by the recent ability to travel again. Logically this has resulted in more people traveling abroad and more people getting their affairs in order before travelling. We have seen that there has been an increased level of enquiry into Wills. 

A question we are often ask is "but what's the difference between having an legally drafted Will or a DIY Will?". To be fair, it's a good question. Why exactly should you pay a law firm to draft your Will when you can simply pick up a home Will kit and do it yourself? 

This article aims to inform you of just that. 

Remember - a Will is a document that deals with everything you own.

Why is my Will invalid?

The Courts take a very cautious view in admitting a Will into probate. After all, the testator is unavailable to say what was really meant. The Courts can and will determine if a Will or certain clauses of the Will are invalid. In many circumstances: 

  • The Will doesn't meet the Courts formal requirements. 
  • The Will is not witnessed correctly or is witnessed in a way that creates doubts if it was correctly signed. 
  • The Will doesn't reflect all the assets of the estate and therefore assets may not be distributed as stipulated by the wishes in the Will. 
  • The Will includes items such as superannuation or life benefit allocations which are not part of the estate.
  • The wording of the Will allows for uncertainty.
  • Testamentary capacity is of concern and the whole Will may fail.  

One size doesn't fit all 

It's important to understand that a simple Will kit is a one size fits all concept, where you are prompted to fill in the blanks and make provisions as stipulated by the document. Yet, we live in a society of different and complex financial situations. We have blended families, investment properties owned by trusts, NFTs and bitcoin wallets, binding financial agreements and valuable sentimental possessions. 

A DIY kit will allow for basic arrangements such as; who you would like as an executor and who gets your assets when you pass. There are many occasions where you may find that such a basic arrangement will not allow for your wishes to be carried out as you would hope. 

Using a professional to have your Will drafted will mean your individual financial and personal situation is taken into consideration and your wishes for how your assets are dealt with are accounted for in your Will. Creating a valid Will avoids hardship for your loved ones upon your passing. It also reduces the risk that you will get it wrong and die with either no will or with an older will you had intended to override.

What will happen if I do not have a valid Will or a will that operates properly?

We at Lavan are faced with estate disputes regularly, where an incorrectly drafted will is the primary issue. Families are left to deal with an estate within the Courts, costing much time, money and heartache. 

If the person writing the Will is of an older age, the Will may be contested by a family members claiming testamentary incapacity. Such a claim can be negated by seeking advice from a law firm and having the solicitor (and maybe even a doctor) assess the capacity of the person making the Will.

Where a Will is found by the Court to be invalid the estate will be distributed as set out prescriptively at law. This may not be the same as your wishes.

Contact Iain Freeman or Kerri Evangelista at Lavan for assistance with your Wills. Lavan are equip to consider your personal and financial situations and assist you in documenting your wishes in a carefully drafted and valid Will.