Are you considering doing your own automated Will online, or completing a Will Kit yourself, as a less expensive ‘do-it-yourself’ solution? Be very careful as preparing your own Will using an online template, or using a ‘DIY’ Will Kit, can potentially create more problems for you and your family, rather than a solution.
An experienced lawyer should provide you with advice to ensure you are aware of the potential risks that may arise including contesting a Will and a claim being made against your estate. An experienced lawyer will review your financial circumstances and family dynamics and discuss your intentions regarding the distribution of your estate to ensure your Will is prepared correctly and accords with your wishes.
Our friendly and understanding team of lawyers are here to help you put your estate planning in order and provide you with expert advice. We keep the process simple, quick and cost effective for you, so you don’t need to put off doing your Will any longer!
Here’s 10 reasons why you should engage one of our experienced lawyers to prepare your Will and advise you on your estate planning, to avoid the pitfalls that arise from using an automated Will service available online or a ‘DIY’ Will Kit:
- An automated Will generated online uses a template where you are asked a series of questions. You cannot know the quality of your online Will, what is missing, what did you forget, or leave out? The same applies if you complete a Will Kit yourself. If you do not answer the questions correctly, the Will automatically generated, or Will Kit completed by you may not be prepared correctly. There is the potential for you to misunderstand the questions used in the template or kit, or not have the capability to make your wishes known. Your intended wishes may be quite different from the legal effect of the terms of the Will that has been automated online or the Will Kit you have completed. This may mean that some gifts fail, or the Will may not be upheld as a valid Will and your wishes may not be carried out. If your Will is invalid, your estate will be distributed in accordance with the rules on intestacy as set out in the Succession Act 1981 (Qld);
- There is an increased likelihood with automated Wills or Will Kits that the formalities associated with the execution and witnessing of a Will (including alteration of a Will, or revocation of a Will (either partially or in full), number of witnesses, interested parties serving as a witness and other formal requirements may not be complied with. Unless the Court is satisfied to dispense with the execution requirements for a Will the document may not be a valid Will, or alterations or revocation of a Will may not be deemed valid. This may lead to the executor being faced with problems that are not able to be rectified and not being able to administer your estate the way you intended;
- Most online Will templates, or Will Kits do not consider your individual and unique needs. Accordingly, not all relevant questions may be asked. For example, if you own any joint real property i.e. real estate owned jointly with any other person, do you know if such property is held as ‘joint tenants’ or ‘tenants in common’? ‘Joint tenancy’ means that the property will automatically pass to the surviving registered owner upon your death. This is regardless of any bequests made in your Will. Thus, you cannot gift your interest in the property to another person named in your Will, unless the property has already passed to you by survivorship upon the death of the other registered owner. Conversely, ‘tenants in common’ allows you to gift your percentage share to another person in your Will. However, there are various factors that may need to be considered in doing so, for example, if your share of the property is gifted to another person how will the property be cohabitated if both parties intend to live in the property? What if one party wishes to sell the property and the other does not? What if one party is living in the property and failing to maintain the property, or both parties are unable to agree as the necessary maintenance and repairs required to be carried out on the property? These are only some examples of matters that need to be given serious consideration and require expert advice to ensure the bequests you make in your Will do not lead to disputes with your estate;
- Due enquiry may not be made as to a person’s testamentary capacity with an automated Will or Will Kit. You must have testamentary capacity at the time of executing your Will, otherwise the Will is not valid. The executor of a deceased estate has an obligation to make due enquiry as to whether the deceased had testamentary capacity at the time of making their Will if there is any evidence to suggest a lack of testament capacity. You cannot be expected to understand the scope of testamentary capacity, without the aid and advice of a lawyer;
- An online automated Will or a Will Kit is often completed behind closed doors where there can be pressure, duress or undue influence within a family group, particularly with the elderly who may require some assistance in completing the forms and templates online. After the death of the Will maker, any person who was present when the online template or Will Kit was completed is potentially at risk of accusations of pressure, duress or undue influence. If any person has exerted such behaviour, they may be the only witness likely to be able to give evidence as to the deceased’s intentions as set out in their Will. The evidence of such persons who have acted inappropriately is likely to be self-serving and may not attest to the true intentions of the deceased. We can arrange one of our experienced lawyers to review your estate planning needs and prepare your Will. Our usual practice is not to permit any person to be present other than the Will maker. This assists to prevent a Will maker feeling frightened, isolated, pressured or lacking the capacity to clearly state and give effect to their true intentions as to the distribution of their estate;
- An automated Will prepared online or Will Kit does not necessarily detect, or alert you to potential claims being made against your estate. Claims made against an estate are often referred to as ‘family provision claims’. Despite any wishes made under your Will, you cannot prevent a family provision claim being made against your estate. That is, where a person dies and in the terms of their Will adequate provision is not made from the estate for the proper maintenance and support of a deceased person’s spouse, child or dependant, the Court may use its discretion, on application made by a party, to make an order for such provision as the Court thinks is reasonable to be paid out of the estate to the applicant. Usually, due to competing interests of parties, each party is separately represented and the costs are ordered to be paid by the estate prior to any distributions being made. This ultimately serves to reduce the amount of the beneficiary entitlements. The costs for these types of claims can be substantial and at times, outweigh the amount of the estate available for distribution. We provide experienced lawyers who are well educated as to the types of family provision claims that may arise. Our expert lawyers can provide you with advice regarding potential claims against your estate and offer possible solutions and alternative suggestions, or options you may wish to consider to avoid a claim being made against your estate;
- An automated Will or Will Kit does not assist in providing any records or evidence from an independent expert lawyer. When preparing your Will, our estate lawyers take detailed notes and keep a record of any meetings and discussions including advising as to any relevant supporting documents that should be kept with your Will. This means you are likely to have documentary evidence that can be produced, as well as evidence that may be given, in person from one of our lawyers, who are independent of interested parties named in your Will. Our lawyers can offer their view, based on your instructions, as to your intentions regarding the distribution of your estate including any explanation or reasons as to your wishes you have discussed with us. This if often of great assistance to the Court in determining the validity of your Will and/or determining any provision that should be ordered with respect to any family provision claims made against your estate.
- The services offered through online automated Wills, or through the use of Will Kits do not give you any financial and/or taxation advice. It is unlikely that you will be abreast of taxation law changes which may adversely affect your estate planning. Depending upon your financial circumstances and the terms of your Will that has been generated online or the Will Kit you have completed, your estate (and in some cases your beneficiaries) and may end up having a substantial taxation liability, which could have otherwise been avoided if the necessary financial and taxation advice had been sought;
- Any information supplied through services offered online for automated Wills is no substitute for legal advice. They do not provide personalised advice, particularly for matters such as where you need help choosing executors, providing appropriately for minor children or dependents with special needs, you are separated from your partner, you intend to marry, you own assets overseas, you have re-partnered and are in a ‘blended family’ with biological children, step-children and/or adopted children. Our team of lawyers undertake professional education and development each year to ensure the services and advice we provide is based upon the most up to date legislation and cases that have been determined by a Court. Our expert lawyers can provide you with guidance and advice to try to avoid potential claims being made against your estate;
- When a Will is prepared by a lawyer, there are consequences if the lawyer has not prepared your Will correctly. Lawyers are insured in the event they make a mistake. With an automated Will generated online or a Will Kit you have completed yourself, you are likely to be the one who is responsible and liable if you get it wrong.
‘Do-it-yourself’ online automated Wills and/or Will Kits are no substitute for Wills prepared by lawyers. You may think you have provided for and protected your family, however if there are errors or mistakes, or other relevant factors you have not considered or addressed, you may have created only problems for your family instead of a solution and your family members may then find themselves in a costly dispute over your estate that could have been avoided had you engaged the team at Forge Legal.
Read this article The Essential Guide to Wills in Queensland for more.