Lately I’ve had a disturbing number of new estate administration clients who have the difficult task of being faced with a will that it invalid on its face. These estates involve wills that have either been written by the deceased (or a family friend) or made with a will-kit. In a recent case I heard someone say, “You don’t need a lawyer to write a will!”
It’s true to say that there is nothing illegal about a will-kit, and also that you do not NEED a lawyer to help you with a will, but invalidity is a common and costly result of the do-it-yourself option.
The difficult thing with these problematic wills is that by the time the problem has been detected, the best witness (that is, the person best able to say whether the document was intended by the maker to be the person’s will) is already dead, and only a court can decide whether the document can be proved as the person’s last will.
One of the most common problems is that the will has not been properly “executed”, that is, properly signed and witnessed. Until recent changes to the law in Queensland and other States, improperly executed wills could not be proved as a will, even when they were created in circumstances where it was quite clear that the deceased person intended the document to be the person’s will.
The law has been amended with the effect that in certain circumstances, wills that have not been properly executed and, in some cases, not even signed by the will-maker, can be approved by the court. It is arguable that this amendment to the law causes more uncertainty as documents that previously would not have stood a chance must not be brought to the attention to the court.
Another common problem is that the terms of the will are not effective. If you really think about it, it’s hardly surprising that the precision of legal language is particularly important with wills. Again, the most important witness is not available to say just what the will-maker meant by the words of the will. In cases where meaning is not clear, it will be the court that decides what you meant.
Your will is one of the most important documents you might ever put hand to, not because your will deals with a bundle of rights that are passed, on your death, to persons of your choice, but because if your will is not carefully prepared in accordance with your own special circumstances, the consequences for your family can be great upset, dismay, and upheaval, not to mention it may cause delays and significant costs associated with correcting improperly signed and inappropriately drafted wills.
That $25 will-kit could be the most expensive thing you ever bought!