Recently a client came to see us for assistance in obtaining Probate after his parents passed away. At first instance, it seemed it would be a straightforward process, but after viewing his parent’s Will it became apparent that it was going to be more complicated.
Our client’s parents had used a Will kit and the Will had not been signed and executed properly and hence the Will was not valid.
When a Will has not been executed properly the validity of the Will more than likely will need to be determined by a Court, which can be a very lengthy process.
Three top reasons NOT to use a DIY Will kit
1.Your Will may not be deemed valid
There are many mistakes that are made when using DIY Will kits that do not meet the legislation requirements.
There are several MUSTS for a Will to be declared valid, a Will:
- must be dated;
- must be witnessed in the presence of two people;
- the witnesses must sign the will in your presence; and it
- must be kept in its original condition once it is signed;
Leaving a valid will makes it easier for your family to apply for a Grant of Probate.
2. Your wishes may not be carried into effect
A lot of Will kits are one size-fits-all. They include instructions and basic provisions that can be very confusing for some people. When a Will is not drafted correctly it can be easily misinterpreted and ambiguous especially if not all sections of the Will are completed. If your Will is not executed correctly there can be consequences that see the Court determine the Will is not valid.
If a Court decides that a will is not valid, it may revert to an earlier will or deem that there is no will. This could mean your assets will be distributed in a way you didn’t intend or wish, and the people you love may not be recognised in your will, whilst others, not included in your Will, may be able to make a claim against your Estate.
3. Will Kits do not deal with ‘Non-Estate’ assets including superannuation
Many people believe that their superannuation automatically forms part of your estate and will be distributed in accordance with your Will, however that is not the case.
Superannuation is not considered an asset and therefore cannot be included in your estate.
The only way you can leave your superannuation to the beneficiaries of your Will is to complete a Binding Death Nomination that stipulates that your super fund must distribute the money in your account to the nominated beneficiaries.
Other assets that do not form part of your estate include joint property, assets owned by trusts and companies.
It is important to seek legal advice about what to do in those instances if you have any assets that do not form part of your estate.
What do I do next?
It is important for your Will to be drafted correctly, making sure all your wishes are conveyed in the Will, and the Will is recognised as valid upon your death. Speak to an experienced Wills & Estate Lawyer today and we will help ensure you look after your loved ones when you are gone. Book an appointment today.