As you already know if you have read my previous articles, I am a big advocate of everyone having a will. But as a solicitor who also advises and assists executors with estate administration, I recommend that you seek legal advice when preparing your will to ensure it covers your individual circumstances and that it complies with the relevant legislation in NSW.
I have seen far too many mistakes not to say something about those post office will kits. You know the ones, they come with a little information booklet that declares that you can prepare your own will for a nominal fee. Just fill in the blanks with your details and you have a legal will, or do you? A lot of people don’t read the booklet that gives the directions for completing the will, or don’t understand the directions, or don’t understand what assets would form part of their estate. Unfortunately, those will kits don’t provide individual advice and people can and do get it wrong. There are too many cases regarding wills prepared via will kits where the court has refused to recognise these documents as valid wills because they are not properly signed or witnessed or they were too unclear. I have had to deal with a few matters where they were not signed, where someone benefiting from the estate was the only witness, and on one occasion, where the will maker had filled in the blanks to appoint an executor, but skipped the paragraph that they needed to complete in order to nominate their beneficiaries. The costs of having the will interpreted by the court, dealing with an intestate estate where a will is found to be invalid or a claim being made against the estate can be significant, not to mention stressful for your loved ones.
There are so many aspects to preparing a will to suit your individual circumstances that is not going to be covered in a will kit. There should be a consideration of what assets would form part of the estate and those that may not such as jointly owned property or superannuation benefits; whether there are tax, CGT, Centrelink or stamp duty consequences for your beneficiaries that could be avoided; and whether there is any likelihood of a claim against the estate and what can be done to try and mitigate that risk are just come examples. So think twice before resorting to a will kit because the money you “save” in not getting legal advice could mean that your estate is paying for a costly mistake later.
KC Hilton, WNB Legal.