5 Common Mistakes People Make with DIY Wills (and How to Avoid Them)

KEY TAKE-OUTS:

• DIY Wills Can Lead to Serious Legal Mistakes
  Many people make critical errors when drafting their own wills, such as giving away assets they don’t legally own, using illegible handwriting, or failing to meet legal requirements for witnessing—mistakes that can render the will invalid.
• Storage and Accessibility of the Original Will Is Crucial
  A will is only effective if it can be found and verified after death. Original copies are often lost or misplaced, especially with DIY wills, which can cause significant delays and complications in the estate administration process.
• Professional Legal Advice Helps Avoid Costly Pitfalls
  While DIY wills may seem like a cheaper option, the risks involved often lead to increased legal fees, disputes, and family provision claims. Consulting an estate planning lawyer ensures your will is valid, enforceable, and securely stored.

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A question that most wills & estate planning lawyers get asked is “Can’t I just do this myself?” Whilst it is not necessary to obtain legal advice in relation to drafting and executing Wills, there are many pitfalls that testators can fall into when preparing their Will.

Mistake #1: Attempting to give away assets that you don’t

A Will can only dispose of assets that you have in your personal name on the date of your death. A common mistake that testators make is attempting to give away assets that they do not own.

For example, assets that are held in joint names with two or more people are not an asset of the estate as there is a right of survivorship. This means that the surviving joint owners will acquire the deceased’s persons share rather than the beneficiaries of the Will.

Superannuation is another prime example as this asset is held by the trustee of the superannuation company you are with and technically not considered an estate asset. Therefore, in order for these funds to be released and gifted accordingly you would need to complete a Superannuation Death Nomination, and not just include a clause in your Will.

Mistake #2: Being too specific

When drafting Wills, often people believe that this requires them to list every asset owned by the Will-maker and write who is receiving that asset. Whilst there may be cases when you wish to specifically gift an item to a certain beneficiary, most people forget to include a “catch-all” clause for the assets that people might forget about, like employee entitlements. These forgotten assets are then called a “partial intestacy” and will be distributed in accordance with a pre-determined formula set by law called the rules of intestacy.

Mistake #3: Illegible handwriting

Simple, if no one can read your Will, then you can’t be certain that your wishes will be upheld.

Mistake #4: Failing to comply with basic legal formalities

For a Will to be valid, it needs be:

1. In writing;
2. Signed by the Will-maker in the presence of two eligible witnesses; and
3. Signed by those two witnesses.

A common mistake that people make when signing their Will is that it is not witnesses correctly in accordance with law, therefore the Will is not valid.
Another issue that we commonly see when these are made without legal assistance is that the witnesses are “an interested witness” who benefit from a disposition under the Will. It is not commonly known that beneficiaries are unable to sign as witnesses to the Will and that if they do, it may void the Will to the extent of their interest as per S10 of the Succession Act 2006 (NSW). This results in many of these Wills being created with the main beneficiaries under the Will receiving potentially no entitlement or benefit from the estate as they have wrongfully acted as witnesses.

Mistake #5: Losing Your DIY Will

This mistake is so common we have even written a blog entirely on this mistake! In short, it is highly common that a Will made at home can easily get lost in paper, thrown out or disregarded when it is needed most.

The easiest way to ensure this does not occur is by consulting an estate lawyer, who when drafting a Will, can be place this in their safe custody. This is a location that is both secure and easily accessible to both clients and their executors should they pass.

 

But Aren’t DIY Wills Cheaper?

DIY Wills are often seen as a cheaper option to seeking legal advice, however some of these common mistakes often lead to lengthy delays in administering the estate and extra legal fees. An invalid or incorrectly prepared Will may also open the estate up to Family Provision Claims or family disputes that no one wishes to occur.

While DIY kits may be legal, they often overlook important considerations and there can be many dangers using a DIY or post office will kit. Don’t risk leaving your family and loved ones with complex legal issues. At Coutts, our experienced estate planning lawyers can provide you with comprehensive advice and Will drafting services.

 

How Coutts can help

The Wills & Estates Lawyers at Coutts are proud to offer clients more than just a Will. Getting the right estate planning advice provides peace of mind and a feeling of security in our ever-changing world. By taking the ‘what if’ out of the equation, our Wills & Estates Lawyers team provide clarity for your future. Our goal is to ensure that you have every opportunity – no matter which stage of life – to have peace of mind in knowing your wishes will be carried out if something were to happen to you.

Schedule an Appointment Now

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