If you’re thinking about getting your Estate Planning in Order, you may be thinking about popping down to the Post Office to pick up a Will Kit. It is much simpler and cheaper than seeing a lawyer, so what’s the problem?
During March 2020, some online providers experienced a 265% increase in the number of people downloading online Will Kits. We have also heard of several Post Offices selling out of paper Will Kits, and customers having to come back to buy a Will Kit when the shelves were restocked.
COVID-19 has obviously made people consider their estate planning and Will Kits come with instructions so, why not make a Will this way?
Peter Brock, the Bathurst 1000 legend, had the exact same thought and is a prime example of the issues we often see with a Will Kit you bought at the post office for $50.
Brock made his first Will using a Will Kit in 2003 – basically he filled in the name of his executor, signed the document and told his then wife Bev to fill in the rest of the form at the time of his death with whatever details she considered fitting (which, by the way is an improper delegation of testamentary discretion). The document was never completed.
After meeting his new partner Julie in 2006 he started to make another Will also using a Will Kit but failed to complete it after his very sensible PA thought that it was too complicated to proceed without legal advice.
Peter was unfortunately killed during a race a few months later. The court decided that his 2003 Will was valid but since it had no details about how to dispose of his estate, the court decided the estate would be administered according to the laws of intestacy – meaning as though he died without a Will. Since this meant that his two biological children would get everything, leaving out his step-son and new partner Julie, it will be no surprise to you to find out there was a lengthy and costly court battle to decide who got what.
His ex-wife, Bev Brock summed it all up by saying “I would hope people out there take care of their affairs and sign their Wills and get all the details done.”
What are the problems?
Problems that we have experienced include:
- The Will Kit form is not completed, and some important sections are left blank;
- You have not signed the Will correctly. Each state in Australia has a different law governing Wills and your Will needs to be made, signed and witnessed in accordance with that law;
- You try to give away assets in your Will that you do not actually own, such as assets held in a trust or company or by a superannuation fund. (Does this come as a surprise? Read more about this issue here and here)
- Your Will doesn’t end up doing what you want it to, for example, you give a specific gift to someone who dies before you and you do not name a substitute beneficiary. That gift then fails and has to be distributed according to the laws of intestacy;
- There is no adjustment clause in your Will that can help minimise stamp duty, taxes and transfer fees (and maximise your estate) when you pass away;
- You do not take into account tricky family situations (e.g. blended families or estranged children), resulting in someone challenging your Will;
- Your pen runs out half-way through making your Will and you have to complete the rest of the form or sign it using a different pen. When you die, the Probate Registry will ask questions about this and require an affidavit from the witnesses to your Will to confirm that no one changed the contents of the Will after you signed it. This is a problem if the witnesses to your Will have since died or your Executor cannot find them;
- The Will is creased, stapled or accidentally ripped when you took it out of the Will Kit booklet. The Executor will need to explain any damage to the Will to the Probate Registry;
- A trusted family or friend wrote the Will out for you, but your signature and handwriting where you dated the Will does not match the handwriting in the rest of the document. Again, the Probate Registry will ask questions about this and require an affidavit from the witnesses to your Will; and
- You throw away the Will Kit booklet once you have completed the Will (as the booklet tells you it is OK to do this), but the Probate Registry later asks what happened to the booklet.
These are just some of the problems we have come across in reviewing Will Kit Wills, there are many more things that can (and do!) go wrong. If the problems are not fixed before you pass away, then dealing with your estate after your death is likely to be much more complicated and expensive for the people you leave behind. The costs you may save by completing a $50 Will Kit are often just incurred by your loved ones when you pass away.
How can we help?
If you already have a Will Kit Will in place, we suggest that you take Bev Brock’s advice and get your Will done properly, that is, by a lawyer. Think of us like a Will Kit with arms and legs.
The good news is that the process to make a new Will is relatively straightforward. You have already made some difficult decisions and we can assist you to put in place a successful estate plan that is protective, tax efficient and simple for your loved ones to administer. Read more about how we can help here.
Our estate planning services extend to more than just preparing your Will and we can advise you about other issues you need to consider in your estate planning.
If you have been appointed as the Executor for an Estate where the deceased person left a Will Kit Will, we can assist you to interpret the Will and apply for a Grant of Probate (if required). Read more about how we can help with probate here. We have dealt with applications involving Will Kits on many occasions, so can help you avoid some of the common pitfalls. Call us on 1300 654 590.