Are will kits legal?
It is becoming increasingly common for people to opt for cost-saving methods of estate planning such as utilising “Post Office Will kits” or online wills or estate planning services. Whilst wills kits are legal in Australia, there is a substantial range of issues that arise with these services that should not be overlooked and that can result in the will, or part of the will, being invalid.
Main Considerations of Estate Planning being Overlooked
One of the most common problems when utilising post office and online will kits is that many important principles of estate planning are overlooked or simply not considered by the testator writing their will. This is the case because the element of legal advice that is necessary for the valid creation of a will is not being provided to the testator when using these services.
Can you gift someone real property in a Will?
One major example is the gifting of real property within a will. An individual may provide a gift of real estate to someone else within their will that they are unable to gift in the first place. This is easily done without realising as if it is owned as joint tenants with someone else then it will automatically pass to the surviving joint tenant upon their death. It is therefore unable to be gifted to a separate third party unless the joint tenancy is severed. A large majority of clients that we speak to on a daily basis are not aware of the ownership structure of their property or assets so would not think to consider this or whether they are able to gift their real estate or the proceeds of the same.
This can have many implications upon the beneficiaries if this is the only gift that they have provided to them and if the family situation is complex. This may result in the main beneficiaries not receiving any benefit from the estate and having to make a Family Provision claim or contest the will to receive their entitlement from the estate.
Mistakes: Witness to a Will requirements
Another common issue with this service is the execution of the document being done incorrectly. Although it may be easy to simply state in the instructions “You need two eligible witnesses to sign”, it is important that the witnesses are suitable and that they are not persons who cannot act as witnesses to wills.
The 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 voids 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.
No advice regarding how to avoid potential Family Provision claims or issues.
The other crucial part of advice that is given by a solicitor upon drafting estate planning documents are likely issues or claims that could be made based on someone’s instructions. Although there is no explicit way to prevent a Family Provision Claim from being made in the future, there are ways in which we can lessen the chances of this occurring and for consideration to be made as to who is likely or can potentially make a claim against the estate in future. If someone simply writes down their wishes without making such considerations, it is much more likely that there will be an estate dispute following their passing and that extensive fees will need to be paid from the estate as a result.
Location of the signed Will
When completion of an at home or online will occurs, the location of the wills are often not communicated or they are kept somewhere that isn’t secure. This is a huge issue, especially for anyone who may live alone or in a different location to the executors of the estate. When a will is completed by a lawyer, it will be kept in their safe custody in a location that is secure and easily accessible for the executors of the estate so that when it is time for the estate to be administered there is never a question of finding or locating the documents that have been created.
Is it cheaper to use a DIY Will kit?
When you consider the fact that such a large majority of these wills result in extensive litigation or contested estate matters, the simple answer is no. A poorly drafted or an invalid will created without legal advice can result in many issues occurring following the passing of the testator, only some of which we have been outlined within this blog. The main issue is it resulting in lengthy litigation and family disputes that no one wishes to occur. A family member passing away is already an extremely sensitive and difficult time and no one wants to deal with the added stress of uncertainty of a will that someone has created from a kit or service that lacks the crucial legal advice required for it to be done properly.
Take control of your estate planning and ensure the validity of your will. While will kits may be legal, they often overlook important considerations and can result in invalid wills. Don’t risk leaving your loved ones with complex legal issues or disputes. At Coutts, our experienced solicitors provide comprehensive estate planning advice and will drafting services tailored to your unique needs. Avoid potential pitfalls and ensure your wishes are properly documented. Contact us today to secure the future of your estate.
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What Sets Coutts Online Wills Apart
Our online wills are not one-size-fits-all templates. Our legal team ensures that your will is tailored to your unique circumstances, addressing your specific needs and concerns.
Your online will undergo a thorough review by our skilled lawyers, ensuring accuracy and compliance with legal requirements. This review process minimises the risk of errors or oversights.
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Experience the peace of mind that comes with a professionally crafted online will. Trust in Coutts’ decades of legal expertise to safeguard your legacy and ensure your wishes are honoured. Create your online will with us today and enjoy the Coutts advantage.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.