DIY will kits - buyers beware

Joe* purchased a DIY will kit in 2008 and gifted specific assets to each of his children and grandchildren.

Joe thought he had given away all of his assets, but he forgot about a small number of shares he owned at the time. By the time he died in 2018 those shares had risen in value and were worth almost $500,000.

However, because Joe did not include a residual clause in his will (that is, a clause giving away everything else he owned, that he hadn't specifically mentioned), it was not known who Joe had intended to receive the shares and conflicts arose between family as to who should inherit this asset.

Most people know that making a will is the most important aspect of estate planning – it’s the document that outlines your wishes after you are gone and is the best way to protect your loved ones.

Still, some people feel that spending money on a clear, legally valid and up-to-date will is unwarranted, perhaps because they are not the ones reaping any benefit from it.

So instead, they choose to lay out their wishes in do-it-yourself will kits or online software that can generate a will quickly, and at a fraction of the price that a qualified will maker would charge.

But buyers beware – do-it-yourself will kits are rarely adequate when it comes to handling complex situations, and anyone making their will without professional assistance risks making a mistake, overlooking something or creating uncertainty about their wishes.

One of the reasons for this is that the way we speak and the words we use in everyday life, when written in a will, may have a different meaning in a legal context.

There are many rules set out in legislation and in case law about how words and phrases in wills are interpreted, and how wills are interpreted as a whole. Where the interpretation of the will is uncertain, it may have to be determined by the Court, which can result in long delays and expenses.

There are also problems when do-it-yourself wills are not signed in accordance with the requirements for a valid will. Questions may arise about whether you intended the document to be your will (for example, did someone force you to update your will for their own benefit?).

If a Court decides that a will is not valid, it would revert to an earlier will or deem that there is no will. This could mean your assets will be distributed in a way you didn’t intend, and the people you may not have wanted to benefit from your assets (for example, estranged family members, children who have gambling habits or a history of substance abuse) would receive large sums of money, while charities or close friends you wanted to recognise would miss out.

A qualified will maker will be able to advise you on complying with certain criteria to make a valid will, including having it witnessed and signed by two or more people who should not be beneficiaries of the will, because that may cancel out their entitlement.

While there are many DIY kits on the market offering a variety of instructions, most offer limited guidance, particularly on the following issues:

• what forms part of your estate
• dealing with blended families
• how to handle superannuation 
• taxation related to your estate
• determining the powers of the executor
• details about guardians and trustees.

When you make a will with NSW Trustee and Guardian, we ensure it meets all the requirements needed to be valid and provide impartial witnesses. We will talk through all of the things you need to consider so that you can make the best decisions for your loved ones.

You can also appoint us as your independent executor to take advantage of our full range of estate administration expertise. Appointing us as executor can also spare your loved ones from the burden of this role during a difficult time.

Your will is one of the most important documents you will ever sign, so it’s wise to have it professionally prepared.

NSW Trustee and Guardian has a selection of packages available for making a Will. These services are charged at no cost for people on the full Centrelink Age Pension or equivalent. Our executor fees are also set by legislation.

* Names and identifying details may have been changed to protect the privacy of individuals.

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