The pitfalls of DIY Will kits
According to recent research, approximately 45% of Australians* pass away without a will, or ‘intestate’.
The word intestate is derived from the Latin word intestatus meaning a person who passes away without a will.
Intestacy may result in inconvenience, delay, and expense during a difficult time in your life having just lost a loved one.
Intestacy may occur not only where a person fails to make a will, but also for other reasons, such as:
- The will didn’t properly dispose of all their assets;
- The will was invalid due to it not being signed and witnessed according to the law;
- The person didn’t have the mental capacity to make the will in the first place; and,
- The will was drafted poorly, and the legal rules governing will construction weren’t followed.
When considering your estate planning, it may be easy to fall into the mindset that drafting a will is a simple Do-It-Yourself task, especially considering there are many cheap DIY options available online and through your local newsagency or post office. However, a prior analysis*^ completed by Choice, in consultation with several estate planning professionals, looked at numerous DIY will kits available and they settled on this summary comment:
“Will kits can be an excellent research tool. Depending on your situation and skills, they can help you to write your will, but they can’t adequately handle complex situations such as blended families or self-managed super funds. So we recommend you get some expert advice as well. Making sure your loved ones are provided for is far too important to leave to chance, and the consequences could be disastrous if you get it wrong.”
The main points that lead to this summary by Choice regarding DIY wills are as follows:
Will Kit 1
- The will kit contained basic instructions, which may have resulted in confusion.
- ‘Issues relating to children, taxation, superannuation and executors’ weren’t appropriately covered off on.
Will Kit 2
- There was no mention of taxation issues.
Will Kit 3
- There was no space for witnesses (to the will) to sign each page, so the will may be considered invalid.
- ‘Discussion about who could challenge the will was not entirely correct’.
- Superannuation issues weren’t appropriately covered off on.
Will Kit 4
- The summary regarding the distribution of superannuation was unclear.
- There was ‘no provision or explanation as to when it would be appropriate to seek tax advice’.
Will Kit 5
- The will didn’t appropriately deal with superannuation and taxation issues.
- There were no clear instructions to seek professional advice if/when doubt arose from anything contained within the will kit.
As you can see by the above points, there appear to be common trends when it comes to DIY will kits i.e. formatting issues and the lack of informative information in certain areas, such as taxation and superannuation. In addition, many DIY will kits do not offer the capacity for establishing testamentary trusts (to protect assets after your passing or for tax-related purposes), nor are they able to be amended with a codicil (an additional document that allows you to change details in your will such as an Executor or a beneficiary changing their name).
By seeking professional advice from your estate planning professional, in conjunction with your financial adviser and accountant, you can limit the chance of leaving behind a partial or fully intestate estate, as well as make sure the will that is drafted reflects your full intentions and the individual complexities of your personal finances, such as personal insurances, investments, superannuation, and taxation considerations.
It is a good habit to review your estate planning situation and needs at least every five years, or if a major event happens.
*NSW Government, NSW Trustee & Guardian. Retrieved from: http://www.tag.nsw.gov.au/wills-faqs.html
*^Choice. (2016). DIY will kit reviews. Retrieved from: https://www.choice.com.au/money/financial-planning-and-investing/financial-planning/articles/will-kit-reviews