A Will is an important legal document requiring great consideration in all stages of life. Perhaps you have purchased a property, recently become a parent, separation or re-partnered and formed a blended family. You may anticipate potential disputes arising between family members upon your death or perhaps you want to make a specific gift to a friend, family member or charity. All of these are reasons to consider making a Will.
A legally binding Will gives the Will-maker the best chance of ensuring that their assets go where they want them to go upon their passing. A Will can give peace of mind to its maker but also can alleviate stress and provide clarity to family members who are required to deal with their assets while also grieving the loss of a loved one.
If you were to pass without a legally-binding Will, this means you will pass intestate and the assets that form your estate will be dealt with in accordance with the rules of Intestacy as provided for in the Succession Act 2006 (NSW) (the Act). Intestacy rules are prescriptive and do not consider the intestate’s personal wishes when distributing assets.
So, we’ve highlighted the importance of making a Will. But how to actually go about making one? You might be familiar with or have considered using an online DIY Will kit (or perhaps a Will kit from the local post office). Perhaps a cheaper and convenient solution to the time-poor among us right? We get it. At first glance online Wills look and sound attractive, promising to make your life easier and helping tick one of the hundred jobs you have floating around in your head, from the comfort of your home no less. But if something sounds too good to be true, it usually is.
Whether an online Will is sufficient in the eyes of the law will depend entirely on the facts and circumstances relating to your matter. But there’s a problem. You don’t know what you don’t know. You may know how you want your assets to be distributed after you die, but unless you are well versed in the evolution of estate planning legislation and case law, you may not know how the law will apply to your specific circumstances and whether or not the DIY Will adequately provide for various scenarios.
Below we outline some of the issues arising from DIY Will kits:
The “cookie cutter” approach
Wills are legal documents which need to be constructed carefully, having regard to your personal circumstances and testamentary intention. Websites that offer DIY Wills generally offer basic questions and options for the Will-maker to consider, adopting a cookie cutter approach. It is important to remember that the online Will is only as good as the legal knowledge of person who designed the algorithms and web page i.e. a web developer. Estate planning lawyers may have been consulted throughout the initial formation of the webpage, but it is not feasible for a website to consider every possible legal scenario depending on the data input into the system. Therefore, the basic “one size fits all” approach is employed, potentially glossing over important, complex factors in your matter which deserve legal consideration.
Lack of proper execution
In order for a Will to be legally-binding and valid, it needs to be properly executed in accordance with the Act. Online Will service providers generally do not offer this service, rather they simply provide the Will-maker with the pro-forma template and leave it to the Will-maker to ensure it is executed correctly.
Section 6 of the Act provides that:
- A Will is not valid unless –
- It is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator; and
- The signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
- At least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other)
Questions regarding the proper execution of online Wills can be raised by any number of factors: did a beneficiary to the Will act as witness? Is the Will dated correctly? Can the witnesses be located? If uncertainty arises, this will inevitably cost the estate, even if the Will is found to be duly executed.
Lack of legal advice regarding family provision claims
A Will is a legal vehicle to ensure the testator’s assets are distributed in accordance with their wishes. But they are not infallible and people who are defined as “eligible persons” may be able to make a claim against the deceased estate if they have been left out of the Will or were not adequately provided for. If a claim was made, the Court would be required to perform the fact-finding exercise of considering the circumstances of the relationship between the deceased and the applicant, having regarding to the nature and extent of the relationship, any obligations or responsibilities owed by the deceased person, the financial circumstance of the applicant, including their current and future financial needs among other things. A key role of an estate planning lawyer is to advise clients on potential claims which may arise and ensure the Will-maker is aware of the risks against the estate. A lawyer can also help mitigate risks depending on the circumstances and client instructions. Of course, even a Will drafted by an estate planning lawyer could face a claim by an eligible person.
Gifting property in your Will
There are various ways you can gift parts of your estate e.g. a general, specific, demonstrative, residuary or class gift. It is important then to make sure that your Will does exactly what you want it to, and that beneficiary details are correct and with sufficient specificity to prevent failed gifts, disputes regarding the construction of Will and extrinsic evidence being used to clarity the Will-maker’s intention.
While this issue is not specific only to online Wills, there is a greater risk of a Will-maker entering the incorrect or insufficient information as to the type of gift to be left and the beneficiary to receive the gift.
Another problem that can arise with online Wills is the possibility of dealing with an informal will.
If the online Will does not be meet the formal legal requirements as described in the Act, but records a person’s testamentary intention, this may constitute an informal will. Section 8 of the Act provides for circumstances when a Court may dispense with the requirement for proper execution of a Will, having regard to the specific circumstances of the drafted document:
- Does the document contain words clearly showing that the Will-maker intended it to be their Will?
- Does the document clearly identify the Will-maker?
- Does the document appoint an executor/someone to manage the estate
- Does the document deal with the distribution of assets upon the Will-maker’s death?
Only a Court can declare the validity of a Will. While a Court may be satisfied that an informal Will detailed the Will-maker’s final testamentary intention, this is not guaranteed and there are instances where a Court has not been convinced that a document purporting to be an informal Will is the intended last Will of a deceased person.
Online Wills can be an attractive option for their perceived ease and cost-effectiveness. But if issues arise such as those flagged above due to the validity or execution of the Will or claims are made against the Will, then inevitably this will result in the testator’s estate incurring costs to rectify these issues.
Here at Cheney Suthers, our estate planning lawyers understand the complexities of making a Will, having regard to a client’s personal and financial circumstances and nuanced family and business relationships.