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The Supreme Court Slams the DIY Will – Again!

The Supreme Court of Western Australian has yet again criticized homemade Wills.

The message from the Supreme Courts is clear:  DIY Wills should be avoided – full stop!

As a nation, we pride ourselves on being able to DIY virtually everything. Whether it be installing garden reticulation, tiling a kitchen or renovating furniture – there is no doubt that you have probably undertaken some sort of DIY task in your lifetime. With the ever-expanding information available online, DIY-ing has become ever more popular.

However, there should be a ‘rule of thumb’ when you decide what things you should DIY and when you should engage the experts. When the ‘DIY project’ isn’t going to affect anyone other than yourself, then yes, it may be safe to say you are free to take the risk without any consequences.  However, when the ‘DIY project’, such as preparing your Will, affects your loved ones, you should think again.

A case example:

In May 2021, Master Sanderson in Trevor Alan Thompson as executor of the estate of Angela Helen Thompson vs Upton [2021] WASC 158, plainly stated in paragraph 1 of his judgement:

“Yet again, this matter illustrates the folly of persons making homemade Wills.  The estate of the deceased is very modest ($511,000).  There is no doubt a good part of the estate will be consumed in a contest over the meaning of what by any measure is a difficult document.  It is invariably the case that money spent on having a Will professionally drafted is a sound investment.”

In October 2015, Mrs Thompson wrote her own Will, but the contents of her Will made it difficult for the Executor (her husband) to follow.  Her husband, acting appropriately, made an application to the Supreme Court for directions on how to interpret Mrs Thompson’s Will.

No doubt Mrs Thompson thought she was saving on costs by preparing her own Will, but she (and many others before her), were mistaken.  The application to the Supreme Court would likely have incurred considerable legal costs against Mrs Thompson’s estate.  And in fact, Master Sanderson concluded his judgement with the following statement: “In cases such as this, it is usual for all of the costs of the parties to be paid out of the estate.”

This is not the first time Master Sanderson has criticized DIY-ers.

 In July 2016, Master Sanderson famously said in Rogers vs Rogers Young [2016 WASC 208] that:

 “On numerous occasions, when dealing with so called homemade wills, I have observed they are a curse. Homemade wills, which utilise what is sometimes known as a ‘will kit’ are not much better.  This case proves the point….   If the will had been drafted by a competent legal practitioner, this problem would not have arisen, and the parties would have been spared a great deal of trouble and expense.”

In our view, there is no estate value, threshold or family dynamics where a DIY Will should be used. We frequently see the traumatic impact that can result from homemade Wills, so even if you think your affairs or your wishes are ‘very simple’, a DIY Will should still not be used.

Putting things in perspective, it is a relatively modest amount to engage a lawyer to prepare your Will, considering your assets may be worth hundreds of thousands (or possibly millions) of dollars!

Arguably, a homemade Will is at greater risk of being challenged on a number of grounds. For example, a Will written by an elderly couple, at home at their kitchen table, and perhaps witnessed by close friends, may (depending on the circumstances) raise a number of questions.  Such questions may range from issues of testamentary capacity, undue influence and unconscionable conduct.

Further, the Will drafter may make errors if they fail to understand the legal requirements and the implications of their words. They may also fail to appreciate the importance of various legal drafting conventions and the execution requirements of a Will.

However, when you engage a competent Lawyer (who follows professional standards of conduct), not only will you receive invaluable advice about your particular circumstances, but the Will is likely to be less vulnerable to such criticisms.

You have probably thought to take some steps to provide for your loved ones after your death.  And if you happen to be an avid DIY-er, you may have naturally assumed you that can also write your own Will.  However, as the Supreme Court has noted:

 It is invariably the case that money spent on having a Will professionally drafted is a sound investment.”

We, Shirley and Emily, have frequently seen the pitfalls of DIY Wills. No doubt you hate the thought of your children having to deal with a Supreme Court decision after your death. We can assist you to prevent this from happening.

Please contact us on (08) 9445-2686 or contact us via our website www.bespokewillsandestates.com.au

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Never too young to make a Will

You might think you are too young to make a Will, or perhaps you just have not had time. Well, if you are over 18, you are not too young to make a Will, and everyone should make it a priority.

If you die without a Will, it is not the case (as many believe) that your estate will “go to the government’’. Rather, your estate will be dealt with according to a legal formula outlined in the Administration Act 1903 (WA).

Determining who is to benefit from your estate, and who is entitled to make the application for ‘Letters of Administration’ can be complicated and time consuming. Further, the statutory formula can often be very different from the way most people would leave their estate, if they had made a Will.

This is particularly the case if you leave young children behind. Your children are likely to inherit part of your estate, along with your spouse, if you have them.  However, if your children are under 18, the complications become very significant. There will be a need for someone to act as a surety, who will guarantee that they will make good any financial loss that a minor beneficiary might suffer, as a result of the applicant’s actions.

In our experience, finding a person willing to act as a surety can be very difficult. Further, your spouse’s access to funds might be severely curtailed as a result of a large part of your estate being held in trust (possibly for years) for your children.

If you are single without any children, your estate is likely to go to your parents and/or siblings. You might be happy with that, but you might prefer a friend or a charity to receive your hard-earned assets, rather than your brothers or sisters (who perhaps in your view don’t really need it!).

Blended families, children with disabilities or personal difficulties, and estrangements within families are all things that require particular consideration.

Shirley and Emily are familiar with the many varieties of issues which can arise in this area, and are happy to talk with you about them.

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When should you update your Will?

Do you already have a Will? If so, when should you update it?

You may need to update your Will if any of the following changes have occurred to your circumstances:

  • You have married or divorced since you made your last Will: If so, you now effectively have no Will because marriage or divorce automatically revokes a Will.
  • You have started living with someone: If so, you should be aware that people who qualify as a defacto partner may be entitled to bring a claim against your estate if you do not provide for them.
  • You have had a child, or more children (via birth or adoption): Does your current Will consider all of your children? If you are unsure, you should engage a Lawyer for advice.

Other situations that may require an update of your Will are:

  • If your executor has died, become ill or incapacitated: If your Will does not provide for an alternate Executor, you should update your Will to avoid complications with your Will after your death.
  • You own a business, or have a family trust, or you have a self-managed superannuation fund: It is important to ensure your business, family trust and/or self-managed superannuation fund has the appropriate provisions in place to ensure the continuity of the entities on your death.
  • Overseas Will: If you have overseas assets or a Will from another country, you should seek legal advice about how your Australian and overseas assets can be dealt with without causing complications after your death.

If any of the above changes have occurred, and you have not updated your Will accordingly, please contact us and we will be happy to assist you.

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Why (some) Lawyers love homemade Wills!

‘Why can’t I draft my own Will?’ you might ask.

Well you can. In fact, there is an old joke, that Lawyers love homemade Wills because lawyers make so much more money after your death, when things go wrong!

It amazes us that some people don’t want to pay a relatively modest amount to engage a lawyer to prepare their Will, and yet will pay their accountant perhaps thousands of dollars every single year to assist with their financial affairs.

If you do decide to draft your own Will, you must accept that you are taking a risk. We practice exclusively in the area of Wills and Estates and this means we frequently see the sometimes-disastrous results from homemade Wills.These can be caused by technical problems, when the will drafter has not appreciated the importance of various Will-drafting conventions, through to errors made at the time of execution of the Wills. It is frustrating for us, because these difficulties could so easily have been avoided if a competent Wills lawyer had been consulted in the first place. As a result, thousands of dollars of estate funds are spent in legal fees and inevitably there is a very long and stressful delay in distributing the assets.

We both have enjoyed many years’ experience in an interesting but rather technical area of the law is. Making a Will is a very personal (and sometimes emotional) process and at times a difficult task for people to face.

However, we take pride in our ability to make the process as painless as possible. We love seeing the relief our clients feel when they have their affairs in order.

Contact us if you don’t want to risk your estate by using a homemade Will.