Perils of a DIY will include increased risk of subsequent legal challenge
Now more than ever, it’s important to have a written will so you can make sure your estate is passed on according to your wishes. So, should you get a lawyer to draw it up? Or is a DIY will just as effective?
Making a DIY will is cheap and they are usually accepted as a legal document. DIY wills can work for those whose family and estate structures are relatively simple.
If all you want to do is pass on your estate to your spouse, or split it equally among your children – and you don’t have ex-spouses, de factos, carers or children from a previous relationship – then a DIY will may suit your purpose.
You will, however, need to appoint an executor and follow the execution rules. Also, there are still pitfalls and traps you need to first be aware of, as outlined on the website of The Law Society of New South Wales.
When to seek legal advice for your will
If you have children from a former spouse, other dependents, complex property holdings or assets such as superannuation, shares, investments and trusts, it’s wise to obtain legal advice and draw up a will accordingly.
Similarly, if you’re involved in a business partnership or have debts, getting your will drafted by a lawyer will reduce the chances of it being challenged.
You may also wish to set up a testamentary trust in your will, to protect assets for young children and to minimise your tax. This requires expert legal advice. Additionally, if you want to ensure that your children inherit if the surviving spouse remarries, it’s important to speak with your lawyer first.
More and more wills are being challenged, particularly with the value of property soaring over recent years, and many DIY wills fail to consider other assets, such as superannuation, investments and intellectual property.
For instance, superannuation (often with healthy death benefits attached) does not necessarily pass automatically under your will. You need to take additional steps to ensure it goes to your selected beneficiaries.
Pros and cons of DIY wills
Consumer advocacy group Choice recently undertook a review of several DIY will kits, giving some guidance around when and why you should obtain legal advice. (See DIY will kit review.)
According to University of NSW Law Professor Prue Vines, lawyers aren’t upset by people writing their own wills. She warns though, that choosing the cheap option of a DIY will might end up costing you more in the end. (See The pros and cons of DIY wills, UNSW Newsroom, March 2020.)
“Lawyers who specialise in wills and estates don’t mind DIY wills – they lead to a lot of business coming their way,” according to Prof Vines.
She said there are many traps in DIY wills and people often get confused by the legalistic wording required. This is why homemade wills often provide work for lawyers at a later date.
How to challenge a DIY will
There are two grounds to challenge a will, and this is more likely to happen with DIY wills.
First, you can challenge a will’s validity. Was it drawn up legally, without undue influence or duress? Was there fraud or pressure? Was it properly signed and witnessed? Did the person making the will have testamentary capacity? (For more information, please see What is testamentary capacity? A basic guide.)
Secondly, you can challenge the contents of the will on the grounds that it’s unfair and fails to provide adequately for dependents, children or a spouse. Is the will ambiguous? Can a partner prove they were de facto? What about someone you have been supporting – will that continue?
When a will is challenged and an administrator or beneficiary of a will has to defend it, the process can hold up disposition of the assets for years – and don’t forget legal costs come out of the deceased’s estate.
What happens if you don’t have a will?
Almost half of Australians don’t have a valid will. For those in NSW without a will, their property and assets will be distributed in accordance with a formula legislated in the Succession Act 2006. Generally in this case, spouses, children and dependents come first. However, if your only living relatives are more distant than cousins, your estate will pass to the government.
For this reason, it’s important to have an up-to-date will – whether it’s a DIY document for simple family and financial structures, or a legally drawn up will that fully covers the complexities of your life and ensures your estate is distributed according to your wishes.