There are some common arguments and myths surrounding the writing of your own will and whether or not they are a good idea or even legal.
Before delving into whether they are a good idea, lets dispel the myth that they are not legal. Legal is not the question, it is whether the document is valid that is important. Basically, for a will to be valid the willmaker needs to be: i) competent or not lacking mental capacity to understand and make a will, and ii) it needs to be signed by the willmaker in the presence of two independent witnesses. All online will forms provide the appropriate methods for signing and witnessing the document and if followed there is no reason why the will should not be valid. Of course there can be complex legal questions and arguments surrounding these issues but then even pieces of paper or mobile phone recordings not correctly signed have been held by the Courts to be a valid will.
Moving on to whether they are a good idea or not let’s look at some of the major arguments against do it yourself and online wills. What are the arguments:
There is a deep seated fear of making a will and that some people take matters into their own hands by writing their own wills, stashing them away and forgetting about them and therefore with the advent of online wills at modest fees people will gravitate to the online will with the consequence of a serious cost to the estate.
That a lay person would consider their affairs straightforward but is unlikely to be able to spot the quirks and grey areas that a professional would.
That that lay person will not draft the assets the subject of the gift with precision which may leave an intended beneficiary with nothing.
That younger people might remarry or have more children or children from previous marriage may be left out
That only a professional can guide you through the difficult questions
That the lay person doesn’t understand the nature of the ownership of property and that the professional will conduct land registry searches to establish with precision the extent of ownership
That the lay person does not understand the position of superannuation and life insurances.
That there might be property owned overseas where a will drafted in that jurisdiction could revoke the Australian will.And the penultimate conclusion to these arguments
“Drafting your own will is risky business. While the contents may appear to be an accurate reflection of your testamentary wishes on paper, the reality could be quite different. Ultimately any upfront saving afforded by a DIY approach could result in costly mistakes, jeopardising the financial and emotional wellbeing of your loved ones.”
Now let’s look a little closer at the arguments in response:
Thinking about making a will naturally leads one to consider their own mortality. It’s actually the point of making a will, to consider how your assets will be distributed when you are no longer. It is understandable that the thought of mortality may cause anxiety for some and that levels of anxiety are deeply personal and different for every person. There is probably no simple or universal remedy for this. But whether you make a will with a solicitor or by yourself the feelings of anxiety may be of no difference. Arguably making the will with a solicitor may even increase the anxiety. But claiming anxiety as a reason for not using a professional service is no more than an argument based on fear.
While there is some truth in the second argument it is again based on fear. But it is also a type of superiority argument that the lay person is ignorant compared to the professional. We all know that this is not entirely true. There are times the professional fails to consider even the most simple of matters. The fact is that most applications before the Courts are where professionals have drafted wills and something is unclear or where beneficiaries are wanting more. Applications around the drafting of wills are called ‘construction’ applications and are mostly about complex estates with complex provisions. There are relatively few applications before the Courts considering the terms of DIY wills. There is wisdom in the saying “Keep it simple”, sometimes overlooked by the legal profession.
Again, this is similar to the arguments raised above. Just be sure to be clear enough when writing the will so that someone with absolutely no knowledge of your assets and circumstances will understand exactly what you intend to give and who you intend to give it to. Even the most carefully draft wills by professionals are not immune to attack, just look at the high profile cases like Rheinhardt and Pratt.
Marriage generally revokes the will. It is a change in circumstances. Just like the addition of a new family member, or the acquisition or disposal of property the subject of a gift. It is the reason why the will can be considered a living document (not a ‘living will’ which is quite different) that it can and should be reviewed regularly and particularly when circumstances change. The comparatively minor costs of regular DIY wills is a factor to consider.
There is some truth that the professional may guide you through ‘difficult questions’, but what are these ‘difficult questions’? In a complex estate planning situation the professional may draw your attention to things you were unaware of and offer appropriate advice. Indeed complex estate planning is a costly and continual process sometimes requires a number of professionals from differing backgrounds to obtain optimal results. However, small estates not so. It’s common for people to own their home and maybe an investment property, shares, cars, boats, collectables and other personal items and ‘difficult questions’ generally do not arise. Perhaps the biggest difficulty is how to distribute their estate in a fair and equitable manner. But this is a personal decision. Even when a professional drafts a will for a small estate there is no guarantee that the will is immune from challenge by a disgruntled beneficiary.
Most people understand what assets they own and whether their real estate is registered in their own name, in ‘joint’ names with their spouse (or others), or as ‘tenants in common’ with another (or others). If you are unsure of the names assets are registered under you should make the relevant inquiries inquiries. For real estate you can check the certificate of title which could be at the bank if there is a mortgage. Jointly owned property automatically goes to the surviving partner and is not included in the will. Property owned as tenants in common can be devised by will but only your share of the property. There is nothing difficult about this. Indeed, if you do not know what assets you have it can be an indication to the lawyer that you are lacking mental capacity to make the will, the lawyer will not draw the will but will charge you for their time.
Trying to deal with superannuation in the will can cause some problems. Superannuation is not actually an asset owned by you. It is an asset held in trust with you as the beneficiary and therefore not capable of being gifted by will. It is at the discretion of the trustee how the super will be distributed. But by providing the trustee with a valid binding death nomination you can direct the trustee to pay the money to your estate. Your executor can then make the distributions of the money received from the trustee to your intended beneficiaries. Without a binding death nomination the trustee generally has the discretion to pay the asset to dependents, such as a spouse, or the estate in which case it falls to the residue. A call to your superannuation fund may help to clarify the situation otherwise you might wish to seek some legal advice.
If there is property overseas it would not generally be considered a simple or small estate suitable for an online will and some legal advice may be appropriate. This is perhaps the most reasonable argument for not using online wills. However there are ways of resolving these issues.
As outlined above, even when professionals are used there may still be contests about the construction of the will. Also, there is no guarantee against someone making a claim against the estate for further provision from the estate. There is, and always will be, risks either way. The online will paradigm is one of the new disruptive technologies for the legal profession and it is only natural that lawyers would argue black and blue in an attempt to resist. After all, arguing is part of the job of a lawyer and they are generally quite good at it.
One further point is the Court views the willmaker as someone who is a ‘just and wise’ person and will fairly look after the members of their family, including defactos and financially dependent non-family members. Consequently, if all those persons have been fairly provided for and looked after, considering the size of the estate, then there will be little recourse they may have to arguing otherwise.
Even if your drafting is unclear and arguments later arise as to what it means, the Court always looks carefully at the will and takes the most favourable approach to implementing the willmaker’s testamentary intentions. Ultimately making your own will is a decision for you and is nothing to be afraid of.