The real cost of DIY Wills

The real cost of DIY Wills

There are some things in life that are just so much better when they’re homemade. Like Mum’s secret recipe sponge cake with fresh strawberries. A hand knitted beanie. Or even a handmade birthday card from your 5 year old niece. But then there are some things that are just better left to the professionals.

Why is it that we’re more willing to let the experts take the reins on some things than others? I wouldn’t try to replace the chipped windscreen in my car, because I don’t have the tools or the skills to do it right – and if I don’t get it right the risk is that I will hurt myself (or even worse, someone else) and end up costing myself a lot more money than I would have forked out if I’d just left the job to the right people in the first place.

But anyone with a pen and a piece of paper (or these days, access to the internet and a working printer) seems to think that knocking together their own Will is as easy as apple pie (or mum’s sponge cake). It’s just that simple, right? Not quite.

Homemade or “Do-it-Yourself” Wills can be confusing, inaccurate, and try to do things that the law just doesn’t allow. A lot of people also don’t realise that there are strict rules about what makes a Will a “formal” Will. Trying to prove that a document was intended to be a Will when it doesn’t look anything like what the law tells us is a Will can be a tricky, costly, time consuming and stressful process.

Not so long ago, this comment was made by a Master of the Supreme Court of Western Australia in the context of trying to work out what a DIY Will was trying to achieve:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

For a lawyer, it’s so much more satisfying to put an effective and valid Will in place for our clients than it is to try to explain to the grieving beneficiaries why it’s taking so long to get a Grant of Probate of a DIY Will or to administer the Estate. It’s also far less expensive for the client and their loved ones to get it right in the first place.

Most people also don’t realise that the laws in Western Australia are different to the laws in other Australian states and territories, let alone to the laws in whichever American state the website you found on the internet has originated in. These websites are easily accessible and will sometimes give you a free product, and (to the untrained eye) they spit out pretty legitimate-looking documents. These sorts of documents might seem tempting, but they can go horribly pear-shaped, even if you think you know what you’re doing. Just a quick tip - if the template you’ve downloaded from the internet uses impressive-sounding words you don’t understand, that doesn’t make it better, it just makes it dangerous and more likely that it will bind your Executors and beneficiaries into something you never intended. It could also come with a hefty bill for legal fees, as a team of lawyers and judges scramble to work out what it means.

A DIY Will also doesn’t come with the most important part of your Estate Planning – the legal advice about what it is a Will really is, what you want to achieve, how you can achieve it, and what other measures you might need to put in place to make sure these things really are achieved after your death. You might be able to watch endless YouTube videos about how to make your own bookshelf or replace your own car window, but as far as I’m aware the internet is yet to master the art of providing personalised and experienced legal advice.

In our experience, the costs of interpreting a DIY Will in a situation where there is absolutely no conflict between the beneficiaries can be terrifyingly more than the costs of setting up a valid and formal Will and Estate Plan in the first place. A DIY Will might be tempting with a $24.95 price tag (as compared with about $1,000.00 for a simple Will drafted by a lawyer), but the legal fees for convincing the Court that a DIY Will is in fact a valid Will could easily nudge $10,000.00 – and that’s just if no one’s even arguing about it. If a challenge is mounted by a disgruntled beneficiary, it’s anyone’s guess how much the Estate will spend in legal fees before everyone can move on with their lives…

So before you’re tempted by the thought of a DIY Will, think about leaving the technical legal stuff to us - but feel free to bring us a piece of that beautiful homemade sponge cake when you come in.

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Monday, 10 December 2018