A home made Will is valid if it is signed and witnessed correctly and its meaning is clear. The trouble is that most of them are neither. In Western Australia the estates we see cleaned up after somoene used a Will kit cost far more to sort out than a properly drafted Will would ever have cost to prepare.
What actually goes wrong?
Home made Wills fail in predictable ways. These three examples show how.
Giving the same thing away twice. A mother had a home in Dianella. In the home was a safe. In the safe was a substantial amount of cash and jewellery. Her Will left some items of jewellery to one daughter and the home “and all contents” to other family members. You can see the dilemma. The Court was asked whether “all contents” included the jewellery in the safe. It found that it did.
A gift of something you no longer own. A father’s Will left “the sale proceeds of my residence at 19 Bushell Drive, Merriwa” to his eldest daughter. He sold Bushell Drive during his lifetime and used the money to buy a strata unit in a retirement village. On his death, did the gift of his “residence” apply to the retirement unit? The Court said no. The daughter received nothing. Lawyers call this ademption and it is one of the easiest problems to draft around if anybody thinks to do it.
Leaving everything to each other. Full stop. A couple each leave the whole estate to the other. It looks complete, but it’s not. If they die together or if the survivor never gets around to making a new Will, there is nothing in either document saying who takes the estate next. It falls into intestacy and a statutory formula decides instead. See What does it mean to die intestate?
Why do home made Wills fail so often?
The most common reasons include:
- Signing and witnessing. A Will has to be signed in a particular way. Get it wrong and the document may not be a Will at all. The Court has a power to admit an informal document to probate, but that is a different type of application with a much higher threshold. It costs the estate money, takes time and it isn’t guaranteed to succeed.
- Words that mean more than one thing. “Contents”, “residence”, “my savings”, “my share”. These words may be clear in the mind of the willmaker when they write the Will, but if the Will isn’t clear on its terms they become a cause of dispute.
- Gaps. For example, where there is no residuary clause, so part of the estate isn’t disposed of or no substitute beneficiary, so a gift fails when someone dies first. Gaps may also include not appointing an executor or an executor who can’t act.
- Everything outside the Will. Superannuation, life insurance, jointly owned property and assets held in a family trust or a compan often don’t pass under a Will at all. A Will kit won’t tell you that, because a kit doesn’t know what you own.
Is a home made Will a false economy?
Usually, yes. Well-meaning people set out to save a modest amount on legal fees and leave their family an estate that takes a court application to untangle. The saving is measured in hundreds. The clean-up is measured in tens of thousands and it is paid out of the estate, which is to say out of the inheritance.
The disproportion is what makes it painful. A Will costs a fraction of one per cent of the estate it deals with. Our fixed prices are published on our Wills service page, so you can weigh that up before you commit to anything.
What does a lawyer do that a kit cannot?
We ask what you own before we write anything, which is how the superannuation, the trust and the jointly held house get dealt with rather than assumed. We write the gifts in language that only carries one meaning. We put in the residuary clause, the substitute beneficiaries and the survivorship provisions that stop a gift failing. We make sure the Will is signed and witnessed correctly, in front of us.
Making a Will is easier than people expect. Most take one appointment and you might even enjoy the process.
We can also confirm that the act of making a Will doesn’t hasten or summon your death!
Frequently asked questions
Is a home made Will legal in WA?
Yes, if it meets the signing and witnessing requirements and its meaning is clear. Legal and effective aren’t the same thing. A valid Will that says something you didn’t intend is still a valid Will.
What happens if my home made Will is invalid?
Your executor can apply to have it admitted as an informal document with no guarantee. If that fails you have died intestate and a statutory formula decides who inherits instead of you.
Can I fix a home made Will by writing on it?
You shouldn’t. Crossing out a name or writing in the margin can create a problem your executor has to explain to the Court. Your best bet is to see a lawyer and have it done properly.
Get it done properly
Most straightforward Wills take one appointment. Book an appointment or call the Wills team on (08) 9220 4433.
See our Wills service and pricing.
This article is general information and not legal advice.
