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CM Law's Ultimate 50 List: Making a Will #4: Can I write my own will, or do I need a lawyer?
Introduction
Many people wonder whether they can write their own will or if they should hire a lawyer to help with this important task. While it is legally possible to create a "do-it-yourself" (DIY) will, there are significant risks involved. DIY wills can often miss critical legal nuances, leading to invalidity or misinterpretation, which can result in costly legal disputes, delayed estate administration, and unintended distribution of assets. This guide explores the pros and cons of DIY wills versus professional legal assistance, the common pitfalls of self-written wills, and a real-life case study highlighting the potential consequences.
Can You Write Your Own Will?
Yes, you can write your own will. A DIY will can be drafted using online templates or handwritten (known as a holographic will), and it must meet the legal requirements set out in the Succession Act 2006 (NSW) to be valid. These requirements include:
- The will must be in writing.
- It must be signed by the testator (the person making the will) in the presence of at least two independent witnesses who are not beneficiaries or the spouses of beneficiaries.
- The witnesses must also sign the will in the presence of the testator.
While these requirements seem straightforward, there are many complexities involved in estate planning that a DIY will might not adequately address.
Pros of Writing Your Own Will
- Cost Savings
DIY wills can be less expensive upfront than hiring a lawyer. Online templates or will kits are generally much cheaper than professional legal services, making them an attractive option for those on a tight budget.
- Convenience
DIY wills can be created from the comfort of your home, at any time, without needing to schedule an appointment with a lawyer. This convenience is particularly appealing to those with busy schedules or who live in remote areas.
- Control and Privacy
Writing your own will allows you to maintain control over the process and keep your estate planning matters private. Some people may prefer to handle their will on their own without disclosing personal details to a third party.
Cons of Writing Your Own Will
- Risk of Invalidity
If a DIY will does not comply with all legal formalities, it may be deemed invalid by the court. For example, if the will is not properly witnessed, or if there are ambiguities in the language used, the court may refuse to accept it as a valid document.
- Lack of Legal Expertise
A lawyer can provide invaluable guidance on legal issues that a DIY will template may not cover, such as the proper execution of a will, tax implications, and how to avoid common pitfalls. Without this expertise, a DIY will may not fully protect your interests or those of your beneficiaries.
- Potential for Misinterpretation
Ambiguous or unclear language in a DIY will can lead to disputes among beneficiaries, causing unnecessary delays and legal costs. Lawyers are trained to draft clear, precise documents that minimize the risk of misinterpretation.
- Exclusion of Complex Situations
DIY wills are often unsuitable for complex estates involving blended families, significant assets, businesses, trusts, or foreign property. In these cases, the lack of professional legal advice can result in unintended consequences, such as assets being distributed contrary to the testator's wishes.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case Study: The Consequences of a DIY Will in New South Wales
Introduction
A recent case in New South Wales illustrates the potential risks of creating a DIY will without professional legal guidance. The case demonstrates how even seemingly minor errors in drafting can lead to significant financial and emotional costs for the intended beneficiaries.
Case Overview
Estate of Buckley [2020] NSWSC 435: John Buckley, a retired engineer, passed away with a DIY will that he had drafted using an online template. His estate, valued at over $4 million, included several properties, investments, and personal assets. Unfortunately, the will contained ambiguous language regarding the distribution of certain assets and failed to meet the formal witnessing requirements under NSW law, leading to a costly legal dispute among his family members.
Behaviour of the Participants
The lack of clarity in John’s will led to a bitter dispute between his two sons and his second wife. The sons, from his first marriage, argued that their father had always intended for them to inherit a larger portion of his estate. They described in court how they had supported their father in his later years, expecting that he would provide for them accordingly. Visibly upset, they recounted instances where their father had verbally assured them of his intentions. Their voices were filled with frustration as they spoke of feeling betrayed and wronged by the ambiguity of the will.
Meanwhile, John’s second wife, who was left with unclear provisions regarding her share, expressed her desperation and fear of losing her home. She broke down in tears, pleading for recognition of the years she had spent caring for John. Her emotional appeals underscored the stress and uncertainty she faced due to the will's inadequacies. The courtroom was fraught with tension, as family members exchanged harsh words and accusations, each feeling a profound sense of injustice and desperation.
Legal Process and Court Involvement
The Supreme Court of New South Wales was required to interpret the unclear provisions of the DIY will and determine its validity. The legal process included:
- Multiple hearings to address the ambiguity in the will and the proper interpretation of John’s intentions.
- Engaging expert witnesses, including handwriting experts and forensic accountants, to verify the authenticity of the will and assess the value of the estate.
- Protracted mediation sessions to attempt a settlement among the family members, which ultimately failed, leading to further litigation.
Financial Consequences
The legal battle over John’s DIY will resulted in substantial financial losses to the estate. Legal fees and administrative costs totaled over $500,000, while the prolonged dispute led to delays in distributing the assets, causing a further depreciation of $300,000 due to market fluctuations. In total, the estate lost over $800,000, significantly reducing the inheritance available to the beneficiaries.
Conclusion
The Estate of Buckley case highlights the dangers of using a DIY will without professional legal advice. The ambiguity and lack of compliance with legal requirements led to a costly and emotionally draining legal battle, underscoring the importance of obtaining expert guidance when drafting a will.
Statistics on DIY Wills and Estate Planning in NSW
- Invalid Wills: Approximately 30% of DIY wills in NSW are found to be invalid due to non-compliance with legal requirements.
- Average Legal Costs: The average cost of resolving disputes over DIY wills in NSW is around $200,000.
- Time to Settle Disputed Wills: Disputed wills take, on average, 18-24 months longer to settle than professionally drafted wills.
- Dispute Frequency: 45% of estate disputes in NSW involve DIY wills or wills with ambiguous language.
- Financial Impact: Estates with DIY wills typically lose 20-30% of their value due to legal costs and delays.
- Executor Challenges: 20% of contested estates in NSW involve disputes over the executor’s role due to unclear or conflicting instructions in DIY wills.
- Lack of Awareness: 70% of Australians are unaware of the legal requirements for a valid will.
- Digital Asset Inclusion: Only 25% of DIY wills in NSW account for digital assets.
- Charitable Bequests: Less than 15% of DIY wills in NSW include provisions for charitable donations.
- Outdated Wills: 50% of DIY wills have not been updated in the last five years.
Essential Resources: Government and Non-Profit Organizations
Government Resources:
Non-Profit Organizations:
- The Law Society of New South Wales – Wills and Estates
URL: https://www.lawsociety.com.au/legal-help/wills-and-estates
- Justice Connect – Planning Ahead
URL: https://justiceconnect.org.au/resources/planning-ahead
- Australian Seniors – Wills and Estate Planning
URL: https://www.seniors.com.au/legal/wills-and-estate-planning
- Dying with Dignity NSW – Resources
URL: https://www.dwdnsw.org.au/resources
- Seniors Rights Service – Legal Guidance on Wills
URL: https://seniorsrightsservice.org.au/legal-services/wills