Published: 14 August 2018
Author: Amanda Burns
The dangers of DIY Will Kits and homemade Wills, and how to minimise risks
There are many high profile Australian cases whereby wills are disputed and the same legal principles apply to everyday Australians.
When people talk about “challenging a Will” they are usually talking about one of two things:
1. Challenging the validity of the Will; and
2. Challenging the contents of the Will on the basis that the Will is an unfair Will because it fails to provide adequately for the testator’s (i.e. Will maker's) spouse, children, dependents etc. This type of challenge is called a Testator’s Family Maintenance claim, or in Victoria a Part IV Claim because the law for this type of challenge is in Part IV of the Administration and Probate Act 1958 (Vic).
Is your Will valid?
A challenge about validity involves an argument that the Will is not a valid Will due to for example fraud, forgery, lack of testamentary capacity, undue influence, duress, pressure or force applied by someone. When this type of challenge is made, the Court must decide whether the entire Will is valid or not.
The Court is unable to say that only part of the Will is valid. It’s an all or none situation. Homemade Wills and DIY Will Kits can give rise to this type of challenge for a variety of reasons. It is not uncommon for the Will to be written out by someone other than the Will maker, for example, the children might all get together and two or more of them write out different sections of the Will on mum or dad's instructions. The different handwriting raises the question of who actually made the Will. Another common error is in the signing and witnessing of the Will which can also lead to invalidity.
It is understandable that many people think about dividing up their assets in terms of "I give my house to...", " I give my superannuation to...", "I give my bank account to..." etc. However, a Will expressed in these terms does not take into account the fact that assets change over time, the house may well have been sold by the Will maker prior to death resulting in the gift failing or perhaps the house cannot be gifted by Will because it is owned in joint tenancy. As for superannuation, it won't necessarily form part of the estate at all.
Even if the homemade Will is not invalid in its entirety, minor mistakes in the Will may lead to substantial costs and delay in proving to the Court that it is a valid Will.
Is your Will fair?
Another important part of making a Will is to give thought to who your dependents are and whom you might have a legal obligation to provide for in your Will. If you obtain advice in relation to this prior to making your Will you might be able to avoid a potential Part IV claim on your estate.
There are many factors to take into account when looking at whether a Part IV claim can be brought to challenge a Will. The importance of these factors can easily be overlooked when using a DIY Will kit. These factors include the nature of the relationship, moral responsibility and obligation to provide for someone, the competing needs of beneficiaries and the overall size of the estate.
If you’ve been maintaining someone during your lifetime, you will probably be obliged to provide for them in your Will.
A common issue that arises for couples with children from previous relationships is reaching a balance between providing for each other and providing for the children. It is crucial to consider how assets are owned be it solely or jointly, whether those assets will even form part of the estate and whether wishes set out in a Will can be fulfilled. Where there are jointly held assets, it is crucial to consider what will happen if both husband and wife or partners die at the same time.
Remember that if there is a dispute over the Will, it is important to obtain advice quickly because there are time limits for challenging a Will.
Please refer to our previous blog What is a Will and why do I need one? for top-line information on Wills.