The do-it-yourself trend and the internet have made writing your own will seem like an easy way to get your affairs in order. But it's not as simple as it seems and there's no substitute for proper advice from a qualified lawyer, no matter how straightforward you think your affairs are.
What appears to be a cost-effective solution can be financially and emotionally draining for those you leave behind should a home-made will go wrong, and there are plenty of examples of that happening. The legal dispute over the assets of car-racing identity Peter Brock springs to mind.
Other examples, involving relatively small estates, have been just as protracted. In one case, the Supreme Court had to rule on the validity of a home-made will covering an estate of just a property and a boat. Courts have also been involved when multiple home-made wills were found. Such proceedings are costly and potentially cut into the estate.
Here's why you should seek legal advice on writing a will.
1 Your affairs are more complex than you think Drafting a will can be complicated, no matter the size of the estate. Nearly all of us have superannuation but this isn't automatically dealt with in a will. Put young children into the equation and more intricacies are involved.
2 Your words can be misconstrued Using your own words rather than legal terminology might create ambiguity.
3 You can have more control over who you exclude If you decide to omit someone from your will, it might not be as simple as making a statement in the will regarding the person and reason. Such statements might make the person more likely to challenge.
4 More control over your wishes Allegations of duress or mental incapacity in relation to you after you die will generally be more difficult to rebut if a qualified lawyer has not been engaged in the will-making process.
5 Signing and witnessing will be done correctly Each jurisdiction in Australia has specific legislation in relation to the signing and witnessing of wills. This is commonly done incorrectly in many home-made wills.
6 You'll receive advice on who is the best executor and trustee Receiving advice in relation to the role of the executor and trustee of your will is important. Simply appointing a family member is not necessarily appropriate. Does this person have the time and expertise, or even want to assume the role? What if they pass away first?
7 Your beneficiaries may be better off A properly drafted will can create tax and asset-protection advantages for beneficiaries.
Using a lawyer to prepare your will and advise on estate planning is a small price to pay to protect your wealth and ensure your wishes are adhered to after you pass away.