(WARNING: Yes, this is a self-serving blog post by a lawyer…, but it’s still worth reading.)
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’s 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 paper Will Kit when the shelves were restocked. (Would it be too early in this post to make a comparison with another family staple that sold out during the early part of the pandemic??)
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 great 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. 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. This time he failed to complete the kit after his (very sensible) PA thought his affairs were 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 had 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 should come as no surprise to you that a lengthy and costly court battle ensued 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?
Estate planning is just not that simple. You spend most of your life at work building up your wealth to look after your family. You spend thousands with banks and financial advisers. You pay tens of thousands in insurance premiums to protect your assets. You even spend thousand and thousands on hair cuts over your lifetime. But when it comes to passing your hard earned assets to your loved ones – some of us think $50 should cover it…
Some common problems we have encountered include:
- The Will Kit form is not completed, and some important sections are left blank. This is fair enough. The correct answers to even the most simple questions on a Will Kit are not obvious to most people.
- You have not signed the Will correctly. Think about this for a minute – even if you are an ‘average Australian’, your estate is probably worth well over $1m. If you went to a bank and tried to withdraw $1m, what do you think the bank would require? They would want to see multiple forms of ID. They would want your request witnessed by someone who knew what they were doing. They would keep records to prove that it was really you. Well, your Will is like a big cheque to your beneficiaries, and the law in each State of Australia has very strict rules to ensure that it was actually you who signed the Will. If you don’t follow these rules the court will need to make extra investigations to make sure it was really you. This costs a lot of time and money.
- You try to give away assets in your Will that you do not actually own. These days people hold assets in various different trusts and funds. You can’t give away assets that you do not hold in your own personal name. So assets in a family trust and in your super need to be specifically dealt with. (Does this come as a surprise? Read more about this issue here and here)
- Your Will doesn’t end up doing what you intended it to. You make a Will at a point in time, but things keep changing from that time onwards. You may sell your car, move houses, have more kids, get divorced. Not only that, your beneficiaries may die, get married or divorced, move address. You get the idea. For example, let’s say you give a specific gift to a someone who dies before you do. Who gets the gift? Their kids? Not unless you say so. What happens if you haven’t named anyone to get the gift? Part of your estate will be ‘intestate’ costing your beneficiaries several thousand dollars more in fees.
- 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). This invariably results in someone getting included when they shouldn’t be. Someone being excluded when you meant them to be included. Everyone getting upset and 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 (yes, you got witnesses, didn’t you!) 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, (or you simply didn’t bother getting your Will properly witnessed).
- 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. This will cost hundreds of dollars (if not thousands). We’re not joking.
- A trusted family or friend wrote the Will out for you, but your signature and handwriting where you dated the Will do 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. Once again, more fees on lawyers explaining things to the Probate Registry.
- 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 getting Will Kit Wills through the Probate Registry and the assets into the hands of beneficiaries. 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.