The Hidden Costs and Dangers of DIY Will Kits: Protect Your Legacy with Professional Guidance

Creating a will is one of the most important steps in securing your legacy and ensuring that your wishes are honoured after you pass away.

However, many people on the Yorke Peninsula and across South Australia are tempted to use DIY will kits, thinking they offer a simple and cost-effective solution.

Unfortunately, the reality is that these kits often come with hidden dangers and costs that can lead to significant legal complications and emotional distress for your loved ones.

This article explores the risks and hidden costs associated with DIY will kits and underscores the importance of seeking professional legal assistance for your estate planning needs.

The Appeal of DIY Will Kits

DIY will kits are marketed as a quick and affordable way to create a will.

They promise convenience and savings, allowing individuals to draft their own wills without the need for a solicitor.

However, what these kits often fail to highlight are the complexities involved in creating a legally sound will and the potential for costly mistakes.

Common Issues and Hidden Costs of DIY Will Kits

1. Improper Execution

One of the most common problems with DIY wills is improper execution. Many people do not realise the strict requirements for signing and witnessing a will.

For example, a will must be signed in the presence of two independent witnesses who are not beneficiaries or related to beneficiaries. Any deviation from this process can render the will invalid.

This reminds me of a client who had instructed me to prepare their will, so I emailed them a draft. They then printed it and signed it without telling me, thinking it would cost more to come and sign it in front of me.

After they signed it, they placed it in a drawer and took it out a couple of months later, making some handwritten alterations before placing it back in the drawer.

Despite my follow-up on the signing process, the client did not inform me of these actions, and he died before I could discover what had happened.

The administration of his estate ended up costing approximately $8,000 more than it would have otherwise. This was due to the need for a special court application because the will wasn’t signed in accordance with legal requirements.

Additional sworn affidavits were required from the witness of the will and from family members to provide evidence of the deceased’s handwriting and the timing and intent of the changes.

All this complexity and expense could have been avoided if he had simply returned to my office and signed the will properly.

2. Ambiguous Language

Legal language can be complex, and DIY will kits often use vague or ambiguous terms that can lead to misinterpretation.

This ambiguity can cause disputes among beneficiaries, potentially leading to lengthy and costly court battles.

One case in point relates to a will kit will that was written by the son of the deceased, while the deceased was lying in hospital dying.

The lack of a lawyer meant there were no tests to confirm the dying man’s legal capacity to make the will or to ensure he was not being influenced by the son.

Aside from arguments that the will was invalid because the deceased did not have legal capacity and was under undue influence, ambiguity in the wording led to very costly legal fees.

The will’s wording stated the estate was left to the son but that he should “offer” half to his sister “if” she could be found. This very expensive ambiguity could have been completely avoided, had a lawyer prepared the will.

3. Overlooking Legal and Financial Complexities

There is a big difference between how you and I speak and write as lay people, and what words mean in a legal context. Not only that, things we might take lightly have extra significance under the law.

DIY wills frequently fail to account for these intricate legal and financial details.

For instance, they may not properly address the distribution of jointly owned property or assets held in trusts. Such oversights can result in partial intestacies, where parts of the estate are not covered by the will, necessitating court intervention to determine the rightful distribution.

But they might also fail when it comes to the simple state of a document and its presentation.

For example, a client brought me a will kit will her husband had left. It had perforation marks on the side, so I asked her where the booklet was. She said she had torn the will out of the booklet on the day she came to see me and had left the booklet at home.

This is a grave situation in the eyes of the law.

It is imperative that a will is kept in the same condition as it was when the deceased signed it.

By tearing the will out of the booklet, an additional affidavit had to be prepared to explain who tore it out, why, and the chain of custody from where it was collected to how it ended up in my office, ensuring no one else had tampered with it.

But that’s not all. Another affidavit was also required from a witness to the will confirming that the witnessing requirements were met.

All this extra work meant the estate cost approximately $8,000 to administer when it would otherwise have only cost about $5,000.

Personal Anecdotes: The Cost of DIY Wills

To understand the real-world impact of DIY wills, let’s consider two more incidents that illustrate why we take this matter so seriously and hope you can see why a small cost up front is the wisest way to protect your estate and legacy.

The case of the dog eaten will

If you were not involved with this estate, you might be tempted to chuckle over something reminscient of “the dog ate my homework”.

But, for the family involved, this was terribly devastating.

Homemade wills are often not stored safely and in one case, my client, the daughter of the deceased, removed the will from an office drawer and left it on the kitchen table.

The family dog then grabbed the will, and by the time my client discovered what had happened, half of the will was missing.

It was a challenging exercise writing an affidavit to prove half of a will and informing the court there was no funny business, just that the dog had eaten it.

The case of the discarded will

Another case involves a will and a kitchen.

My client, who was the executor, removed the will from the kitchen drawer and placed it on the kitchen sideboard.

The will was old and in a shabby envelope.

My client then went out for the morning, and her cleaner, seeing the shabby envelope, put it in the bin and promptly took the rubbish out.

The rubbish was collected by the garbage truck before my client returned home, and the will was lost.

The Importance of Professional Legal Assistance

The risks and potential costs associated with DIY will kits far outweigh the perceived benefits.

By seeking professional legal assistance, you can ensure that your will is properly drafted, executed, and legally sound. This not only protects your legacy but also provides peace of mind for your loved ones.

1. Expertise and Experience

As solicitors who are involved in estate planning on a daily basis, we bring expertise and experience to your situation. We understand the nuances of the law and can provide personalised advice tailored to your unique situation.

2. Peace of Mind

Knowing that your will is legally sound and that your wishes will be honoured provides invaluable peace of mind. Your loved ones will be spared the stress and uncertainty of dealing with an invalid or contested will.

3. Comprehensive Estate Planning

Professional legal assistance goes beyond drafting a will. It encompasses a comprehensive approach to estate planning, addressing all aspects of your financial and personal affairs to ensure your legacy is protected.

Practical Advice for Ensuring a Legally Sound Will

1. Consult a Professional

The most effective way to ensure your will is legally sound is to consult a solicitor. We have the expertise to navigate the complexities of estate planning and can tailor the will to your specific needs and circumstances.

2. Document Clearly and Thoroughly

Ensure that all aspects of your will are clearly documented. This includes not only your wishes for asset distribution but also any special instructions or considerations. Detailed documentation can help prevent misinterpretations and disputes.

3. Regularly Review and Update Your Will

Life circumstances change, and it’s important to review and update your will regularly. Significant life events such as marriages, divorces, births, and deaths can all impact your estate planning needs.

4. Communicate Your Intentions

Discuss your estate plans with your family and beneficiaries. Clear communication can help manage expectations and reduce the likelihood of disputes after your passing.

5. Address Potential Disputes

Consider potential disputes and address them proactively in your will. For example, if you anticipate that certain provisions may be contested, include a detailed explanation of your reasoning and consider including a no-contest clause to discourage legal challenges. This is just one of the things we will discuss with you.

Conclusion

While DIY will kits may seem like a convenient and cost-effective solution, they often come with hidden dangers and costs that can lead to significant legal and emotional consequences for your loved ones.

In the Yorke Peninsula, it is crucial to think of Mildwaters Byrth Lawyers & Conveyancers when considering creating a will. Our professional guidance ensures that your will is legally sound, comprehensive, and reflective of your true intentions.

By investing in professional legal assistance, you can protect your legacy, provide for your loved ones, and avoid the pitfalls of DIY wills.

Don’t leave your estate to chance—seek the expertise of a solicitor to ensure that your final wishes are respected and that your family is spared the heartache of legal disputes. Your legacy deserves nothing less.