THE RISKS OF WRITING YOUR OWN WILL
The COVID pandemic has thrown our lives into a state of uncertainty and during this time many people are considering whether they should make a Will or they are reflecting on their existing wills to ascertain whether it clearly meets their wishes.
There are people who choose to write their own wills or purchase a Will kit and they are unaware of the risks involved by not obtaining professional legal advice. It is easy to make mistakes when you prepare your own Will and even the smallest error may result in your Will being invalid or certain gifts failing or being distributed to the wrong person.
The risks of using a Will kit or writing your own Will include:
Risk 1 – Your Will Is Challenged on The Grounds of The Validity
This involves a person arguing that your Will is not valid because at the time you made your Will you did not have testamentary capacity or you were unduly influenced (forced or pressured by someone else) or the Will was fraudulent.
If your Will is challenged on any of those grounds there is usually no evidence available to show that you had capacity or that you were not unduly influenced at the time you made your Will.
These challenges can delay the process of your executors obtaining probate of your Will and it will be costly for your estate to defend these claims.
It is simpler to defend these sort of challenges if your Will is prepared by lawyers. Lawyers will obtain proper instructions from you and will have detailed file notes of your instructions. Lawyers will explain the effects of your Will and answer any questions that you may have in regard to your Will.
In addition, they can be called on to give evidence as to your testamentary capacity at the time you made and signed your Will and that you were not unduly influenced by any other person. If there are potential concerns about capacity, they can advise on evidence to support the existence of capacity.
Risk 2 – The Terms or Words in Your Will Are Confusing
Unclear or confusing instructions in your Will can cause problems of interpretation and you may run the risk of your wishes not being carried out properly.
Words that are ambiguous can sometimes lead the Court being asked to determine their meaning and again this can be costly for your estate.
Lawyers can accurately draft your Will in a legal manner so as to avoid inaccuracies and confusing terms and words.
Risk 3 – Giving Away Assets That You Do Not Own or Failing to Cover All of Your Assets
Not all assets can be dealt with in your Will. One such example is superannuation, which has to be dealt with by way of completing a binding nomination form directing the trustee of your superannuation fund as to how you want your superannuation to be distributed.
People often give away assets that they do not own, with the result that those gifts therefore fail.
Similarly, you may not deal with all the assets you own. If there are no instructions in your Will to deal with the remaining assets, there is uncertainty in relation to those assets and they will accordingly be distributed in the manner set out in legislation (which may not reflect your wishes).
Lawyers can provide you with advice as to what assets forms part of your estate, discuss with you as to how these assets can be distributed to your intended beneficiaries and make sure that all your assets have been dealt with in your Will.
Risk 4 – Taxation Issues
It is easy to forget about the tax (such as capital gains tax (CGT) and stamp duty) that may impact upon your beneficiaries or estate when you pass away.
If you fail to take into account the embedded capital gains taxes affecting particular assets it could result in a beneficiary receiving more from the estate than other beneficiaries, which may not have been your intention. Gifts of real estate (property) could trigger stamp duty if your beneficiaries wish to receive their interest in the property in terms which differ from your Will. Lawyers can provide you with taxation advice and structure your Will to minimise and avoid additional tax being paid.
Risk 5 – Your Will Is Not Signed or Witnesses Correctly
If your Will is not signed or witnessed correctly this can create doubts as to whether or not you intended this to be your final Will. In the worst case scenario, the document will have no effect.
This also creates problems for your executors to try and prove the Will to Probate. It can be a lengthy process of trying to prove your Will does meet the legal requirements, and it is also very costly.
When your Will is witnessed by lawyers they will ensure that your Will is executed properly and complies with the legal requirements.
RN LEGAL has assisted many clients with the delicate task of creating a Will. RN LEGAL has the experience, expertise, and resources to help you with such matters. Contact RN LEGAL on (02) 9191 9293 or [email protected] if you, or someone you know, requires advice or assistance with Will preparation.