Why It's a Bad Idea to Write Your Own Will

It is relatively easy to find a free will template on the internet and fairly cheap to buy a will "kit" from a newsagent or online. There are also websites that have "data collectors" that take your information and create a will for you seemingly without any legal expertise required. So, is it really a good idea to write your own will?

Why You Need a Valid Will

The sole purpose of writing a will is that you can direct where your assets go when you pass away. If you have a valid will, your executor applies through the probate process and distributes your estate in accordance with what you have written. If you hold joint property with your spouse, probate is not usually required unless substantial assets are held in your own name.

If you have a will that is deemed not valid by the probate court, your estate will most likely be exposed to delay in distributing your estate, increased legal and court costs, and perhaps financial hardship and emotional anguish for your family. Most people think their situation is simple and that a DIY will is enough — but consider the following situations.

Your Home-Made Will Is Lost or Cannot Be Found

When a lawyer prepares a will for you, they usually hold it after signing in their safe custody and provide you with copies. If you subsequently lose the original, your family can ask the court to look at the copy and allow the wishes in that will to stand. If there are no copies, the family is put to the expensive task of applying to the probate court for a grant of administration — a more lengthy and costly method of dealing with an estate than the usual grant of probate.

Your Hand-Written Will Is Not Signed Correctly

There are very strict requirements for the signing and witnessing of wills — if yours is not signed or witnessed correctly it may be invalid. If your will does not deal with all of the assets and liabilities you leave when you die, it may be ineffective in dealing with those assets. Once your will is made, even writing on it later or making changes will invalidate that will and may render it ineffective, either partly or fully.

You Own a Business, or You're Not Married to Your Partner

If you own a business, you will need a validly appointed executor to run it until it is sold or dissolved — without one, ongoing expenses such as rent and staff costs may cause the family hardship until the business can be liquidated.

If you and your partner are not married and bought property together in unequal shares, the property may not get transferred to your de facto partner or children as a matter of course without a valid will dealing with it in a simple, cost-effective way.

Previous Wills, and Superannuation

If you made a will when you were younger — perhaps leaving your estate to your parents — and later started a family, an invalid new will may mean your estate goes to your parents, not your new family, resulting in a costly and longer process.

Superannuation may form part of your estate, but in most cases it is paid directly to a beneficiary nominated in your superannuation policy, not according to your will's terms — and there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death. Superannuation funds have particular rules for releasing funds to an estate, and an invalid will makes this process more difficult to navigate.

Lawyers Are Trained to Write Valid Wills

Your lawyer will always take into account the strict legal requirements for a will to be considered valid by the state probate court, and also consider your particular situation and the specific individualised elements you need included. Your lawyer can also help plan other aspects of your estate, such as whether you need to appoint a guardian for your children, a trustee to run your business, or whether an elderly relative needs to remain in your home after you are gone.

If you or someone you know wants more information or needs help preparing a valid will, please contact us on (03) 9598 8699.