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In this article, Michael Lewis discusses the perils of the use of 'home-made' wills

 

 

“Will Packs” or “Do it Yourself” wills can be bought cheaply from your stationer or from your local Post Office.

You can also access software and websites for writing wills. There are significant risks involved in preparing a will in this way.

Indeed, in a court case over the terms of a will heard in 2013 in the WA Supreme Court, the Master remarked:

“Home made wills are a curse. But where ... the will is opaque ... the inevitable result is an expensive legal battle which is unlikely to satisfy everyone ... All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflects his wishes ... engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent ...”.

(Master Sanderson in Gray v Gray [2013] WASC 397).

In a court case over the terms of another will heard in November 2016 in the WA

Supreme Court, the Master said:

“Over the years I have made countless statements in judgments bemoaning the fact testators seem to think they can adequately deal with their estate by way of a homemade will. Really there is nothing left to say on the topic. This case reinforces again the difficulties which so frequently arise. What should have been a simple grant of probate to give effect to a straightforward disposition of a small estate requires the intervention of the court.”

(Master Sanderson in Brant v Murray and Arnold [2016] WASC 390).

All too often a will that has been incorrectly prepared can turn out to be invalid or ineffective. That being the case your estate will be dealt with under the laws of intestacy where your assets are distributed to next of kin according to a set of rules.

Disputes can arise between family members and next of kin.

Words can be misunderstood, signing and witnessing may not be done correctly. You may disinherit or exclude someone from your will who has a right or entitlement to a share in your estate.

A will should be drawn to achieve your objectives. A “home made” will, with the best intentions, may not achieve this.

Michael Lewis has been a senior partner at the firm of Robinson Cox and then of its successor Clayton Utz. After working as a consultant at Sceales & Co, Michael joined Leaker Partners as a senior lawyer, where he now maintains a practice in wills, estates and succession matters. Michael’s mission is to be a sound and understanding lawyer to people in need of estate planning advice and the management of deceased estates, and he champions the use of plain language in the law.