Everyone knows that it is possible to buy a will kit from the local newsagent. These will kits, also sometimes called “do it yourself wills” or “home-made wills”, typically cost only about $30.00.
Why will kit wills are dangerous
But will kit wills are dangerous and difficulties can arise when these wills are later lodged for probate after the death of the will-maker, adding sometimes many more thousands of dollars to the process than would have been the case had a professionally drawn will been signed.
Common problems with will kit wills
The most common problems we see in homemade wills are:
- The will is not signed or witnessed properly
- The will is inappropriately marked
- The executor appointed in the will dies before the will-maker and there is no substitute executor
- The executor appointed in the will is not appropriate due to conflict of interest etc
- The will makes a gift of an asset which does not exist at the time of death
- A gift contained in the will is unclear
- The gift may name a charity that does not exist at the time of death, or not accurately describe an asset, or makes a gift to a beneficiary who is named but cannot be identified or located
- The gift is incapable of taking effect for legal reasons
- No knowledge or understanding of the potential tax effects
- Problems with multiple or lost wills
- No knowledge or appreciation of the relevant laws
But where there is a will, there is a way
Notwithstanding many of these problems, we have over 20 years of experience and expertise in obtaining grants of probate in respect of homemade wills, because the same or similar problems occur time and again and we have come to learn what to do in any given situation.
Provided that it is clear that the document purports to be the testamentary wishes of the deceased, it is almost always the case that probate of such a document will be granted, whether as a formal or “informal” will under the Wills Act.
How we can help
If you have been appointed executor of a will kit will, or you feel that your rights as a beneficiary may have been affected by the terms of a will kit will, we will be able to assist you as follows:
- Obtaining Probate of the will or Letters of Administration with the will annexed;
- Advise you whether the document purports to be a testamentary document (if it does not, we may advise you to apply for Probate of an earlier will or apply for Letters of Administration on the basis that the deceased died intestate);
- Assist you in defending any challenges against the validity of the will or, if you are a disappointed beneficiary, bring such a challenge on your behalf.
Other difficult applications for Probate
We also have experience and expertise in:
- Applications for probate of copy wills where the original has been lost;
- Applications to the Supreme Court for rectifications of wills where they do not carry out the will-maker’s intentions, whether due to a drafting error or some misunderstanding as to the will-maker’s instructions.
Drafting wills or making applications for grants of Probate or Letters of Administration are best left to professionals.
However, if you are an executor who has been appointed under a home made will, there generally is some truth to the saying, “where there’s a will, there’s a way”. We can certainly help in getting such wills admitted to Probate.
If you have an issue with a will kit will and not sure what to do next, we urge you to give us a call on 8276 7955 to discuss your situation. The first 20 minute telephone consultation is absolutely FREE and no obligation.