Graeme Heckenberg
More
Have a question?
Complete confidentiality 100% guaranteed. View our privacy policy.

Problems with Will Kits

July 1, 2021 by Graeme Heckenberg

The COVID-19 pandemic boosted the usage of DIY Will Kits with a 265% increase in sales of online Will kits during March 2020. More people are clearly seeking ways to organise their estate planning and, with greater access to the internet than ever, online Will Kits seem to be an efficient and simple way to do so. However, while Will Kits can be easily purchased from the post office or local news agency for less than $50, there are several issues that should be considered before convenience.

The Will Kit is not complete

There are many crucial sections of a Will that may be left blank. The simplest questions can be overlooked, creating problems with the validity of the Will.

The Will is signed incorrectly

The law in each State of Australia has strict requirements for proving that the signature of the Will is genuine and valid. If these rules are not followed, the Court has a number of processes for proving a signature and this can cost a lot of time and money.

If the Will is not signed, questions may arise about whether the person intended for the document to be their will.
Even writing the correct name is a common issue. The Executor of the Will may have issues proving that Eliza Smith is the same person as Elizabeth Jane Smith. This can result in delays in administering the assets of the estate.

The Will gives assets that are not owned by the Will-maker, or does not give away assets

Assets can be held in various trusts and funds, and it is common for users of Will-Kits to give away assets that are not held in their own name or not give away assets that they do own. Additionally, there are specific requirements for assets in a family trust and in superannuation. It is crucial to correctly identify estate and non-estate assets when preparing a Will.

The Will is not witnessed by anyone, or has only one witness

Legislation requires that the signature must be acknowledged by the testator (person making the Will) in the presence of two or more witnesses present at the same time. Section 8 of the Succession Act 2006 (NSW) sets out when the court may dispense with formal requirements for the execution, alteration, or revocation of a Will, including where it has not been properly witnessed.
Where a Will has been witnessed by only one person, the DIY Will will be classified as an “informal Will” which can create issues for lodging a Grant of Probate.

The Will is in a damaged condition

If the Will is creased, stapled, ripped, has paperclip marks or uses a different pen half-way through, or if there are amendments to the Will which are not identified by the Will-maker and the witnesses, the Executor will need to explain the damage to the Probate Registry. This can incur huge costs.

There are many other problems that arise with the use of DIY Will Kits and the processes of validating the Will through the Probate Registry. There can be enormous delays and costs when the rules are not followed, and the people dealing with the Will after the Will-maker’s death can be burdened with costly and complex problems. If the Court decides that a Will is not valid, it can revert to an earlier will or deem that there is no Will and therefore, the assets may be distributed in a way that was not intended. These problems can be easily avoided by preparing a Will through a Solicitor.