Updated: Oct 11
Estate planning is a crucial component of your overall financial and emotional legacy. We’ve written before about key considerations when preparing a will and how it lets you specify how your assets should be distributed after your death.
A DIY will kit may seem like a quick, low-cost way to record your wishes for your assets. But a will needs to do more than list names and percentages: it should reflect your circumstances, clearly express your wishes, and be signed in accordance with Queensland law.
A DIY will is not automatically invalid. The risk is that a generic form or unclear wording may not address your specific situation. If your will is challenged, difficult to interpret or incomplete, resolving the problem can create stress and expense for the people you intended to help.
If your estate involves a home, a blended family, young children, a business, a trust or a person with additional support needs, get legal advice before relying on a standard will kit.
That's why we love DIY Will Kits as much as dentists love sugar.
What Can Go Wrong With a DIY Will?
The Form May Not Match Your Circumstances
Why do you buy the more expensive low-fat almond milk when you're at the grocery store… Because you’ve found it suits your personal needs and tastes better.
The same goes for your Will. A Will kit will rarely, if ever, suit anyone perfectly and is designed for incredibly simple, straightforward estates.
More complex matters, such as businesses, property and other investments, blended or estranged families, underage children, individuals with disabilities, individuals with physical or mental health disorders, and more, will require unique and personal solutions.
A DIY Will kit will often lack consideration for these things, ultimately leaving these important assets to the courts and legislation to deal with, which may ultimately go against your personal wishes.
Even for simpler estates, a generic document such as a DIY Will kit will fail to capture the intricacies of your personal and financial circumstances, and can place the estate at risk of family provision claims and/or disputes.
Your Instructions May Be Unclear
Remember the instructions that come with an IKEA flatpack? A DIY Will kit will include one of those, which you would need to read, understand, and complete perfectly for the document to be valid in the first place. This notwithstanding, the document's contents are generally worded by you, who (we presume) is not a lawyer.
There are countless examples of families who, after the death of a loved one who has used a will kit, have discovered that their well-intentioned document will not hold up in court.
The result? Unnecessary legal costs to resolve the matter through various probate applications, court-ordered applications, bank accounts tied up and inaccessible for months, debts that loved ones must pay, and family lawyers needing to arrange child guardianship.
Because DIY Will kits are often a ‘one-size-fits-all’ document, the wording can be ambiguous. This ambiguity can lead to the Will being challenged, disputed, or entirely misinterpreted. A common example is naming an executor or beneficiary incorrectly, which can have lasting impacts on who administers your estate and who benefits from it.
Signing Requirements Matter
Ultimately, you don’t know what you don’t know. Lawyers understand the law, legal best practices, and strategies to avoid litigation and other disputes. After all, you have worked your entire life for the assets you hold. Why risk a lifetime of work just to save a few hundred dollars?
Basic formalities, such as witnessing requirements and specific language requirements, can prolong estate administration and increase legal costs needed to resolve the issue.
For example, did you know that you (the testator) and two witnesses must sign every page and use the same pen to avoid any dispute over whether the Will was signed and witnessed at the same time? In some cases, expensive graphologists must validate the execution and/or witnessing before the estate can be administered.
A lawyer will take the time to understand your circumstances and wishes and help you build a strategy to ensure your wishes are met when the time comes. Without proper guidance, you risk making mistakes and putting yourself and your loved ones in a difficult situation.
When Should You Get Legal Advice?
Consider speaking with a solicitor if any of these apply:
You own real estate, a business, company interests or assets held in a trust.
You are in a blended family, have separated from a partner or expect family members may disagree with your wishes.
You want to provide for a child or another person who is under 18 or needs ongoing support.
You want to exclude someone who might expect to benefit from your estate.
You are unsure who should act as executor, or what that role involves.
You have an existing will that may no longer reflect your circumstances.
This list is a starting point, not a complete test. Even if your situation seems straightforward, advice can help you understand what the will does and does not cover.
Get Advice About Your Will
RHC Solicitors can help you prepare or review a will that reflects your circumstances and wishes. Contact our Wills and Estates team or call 07 3209 7000 to discuss your options.
Review Your Will When Life Changes
A carefully prepared and executed will can last for years without the need to change it. It should consider known future events or intentions and avoid common pitfalls that can later invalidate the Will. This might include future marriages, divorces, children, or the sale or purchase of assets.
At the same time, review and update your estate plan when your personal circumstances change. This might include the birth or death of a family member, the sale of property, or establishing a new business, company or trust.
Estate law changes and evolves over time. What was appropriate even five years ago may no longer apply. That is why it is important to keep your estate documents up to date regularly. DIY Will kits do not account for these changes, so engaging a reputable lawyer can ensure your estate documents reflect current legislation, mitigate risk by using the latest best practices, and remind you of important changes and considerations.
A will is only one part of estate planning. Depending on your circumstances, you may also need to consider documents such as an enduring power of attorney, superannuation nominations or arrangements relating to a family business or trust.
And, arguably just as important, a lawyer can hold your documents in safe custody, so you and your loved ones can sleep easier knowing the documents are secure, will not go missing, and you will not forget where you put them or accidentally throw them out.
Frequently Asked Questions
Are DIY Wills Valid in Queensland?
A will made using a kit is not automatically invalid. It still needs to meet the applicable legal requirements, and its wording must clearly express the will-maker’s intentions. A court may recognise some documents that do not meet the usual signing requirements, but this can require an application.
Do I Need a Lawyer to Make a Will?
There is no general requirement that every will be prepared by a lawyer. Legal advice may be especially useful if you have complex assets, family circumstances, or questions about how to express your wishes.
What Happens If My Will Is Unclear?
The executor may need legal advice about how to administer the estate. If a clause's meaning is disputed, a court may need to interpret it. That can delay administration and increase costs.
Can I Update My Will Myself?
Whether a change is legally effective depends on how you make it. Alterations must meet applicable requirements, so it is usually safer to have a solicitor prepare a new will or advise on the change rather than writing on the existing document.
Have a Lawyer Prepare Your Will Today
While it may be appealing to prepare your Will with a cheap DIY Will kit, the potential risks aren't worth it. When considering the value of your assets and your wishes for your loved ones, always seek proper legal advice. This ensures that your estate documents are drafted to suit your particular needs and wishes.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current, and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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