We have all heard of the common scenario, of DIY kits, such as DIY renovations, at the outset they seem cheaper and easier, but if you drill into a water or gas pipe, then you have to engage the professionals to rectify the situation, which will cost you more in the long run.

The same situation applies to Will Kits, whilst they may be cheaper and what seems "easier" to complete than seeing your lawyer, the implications of having an incorrectly drafted Will could be dire.

The most common problems that arise from Will Kits relate to a will maker's lack of understanding of Succession Law, the formal requirements for ensuring the Will is valid and that the gifts in the Will do not fail.

Some issues which require care and specific drafting:

  • Proper consideration as to the appointment of an executor and in particular the appointment of alternate executors. This should be someone that you trust.
  • Whether the Will is correctly executed? In our experience, a Court may be lenient on this issue, but the cost and effort of resolving this discrepancy in Court is substantial.
  • The difference between giving a gift to several beneficiaries as a joint tenancy or tenants in common. The right of survivorship in respect of a joint tenancy means that if one of those beneficiaries were to predecease the Will maker, then their share is redistributed amongst the remaining beneficiaries and not distributed to their children.
  • Ensuring that particular gifts do not fail, such as if a child does not survive his or her parents leaving children, will those grandchildren take the share that their parent would have received?
  • If the grandchildren are to receive a share in the estate, should a particular age be nominated for when they have access to that share, and the executor in the interim will hold such share on trust.
  • Understanding that superannuation does not normally form part of the estate.
  • Appreciating the implications of "leaving someone out" of your will. What rights do you have to challenge your will under the Succession Act 2006 (NSW). The cost of this costly litigation will be deducted from your estate assets and may leave your intended beneficiaries substantially less than is required to meet their needs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.