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Beware of DIY Wills!

Jul 11, 2016

Following on from our recent article highlighting the importance of making a Will, we now address another frequently asked question: "Can I prepare my Will myself?"

There is an old saying, "A solicitor who acts for himself has a fool for a client" and in a similar vein the perils and "real" costs of preparing one’s own Will or using a DIY Will-kit are worth considering.

Why get a lawyer if I can do it myself?

The law surrounding the making of Wills and the expression of terms in Wills is complex. For better or worse, ordinary everyday English frequently lacks the precision required to successfully express testamentary concepts.

In simple terms, using the wrong words, what you want to happen may not happen, and if it does, it might only happen after your Estate has expended substantial monies on legal fees and Court process to determine what you actually meant even though you thought it was perfectly clear. The Courts are filled with (and lawyers are kept in business with) applications seeking the Court’s directions on what the testator (the person who made the Will) actually meant.

Case Study: Yu v Yu [2015]

The recent case of Yu v Yu [2015] QSC 373 provides a modern twist on why it pays to have a Will properly prepared. The Deceased was a young man in his twenties who was employed by the ATO. He had made a Will using the "Notes" Application of his iPhone. The issue with regard to the validity of the Will, as it was on the iPhone required an expensive application to the Court to determine if the Will would be accepted as the Will of the deceased. A court ordered ultimately that it was. However, there needed to be a further application to be made to the Supreme Court to determine the meaning of the Will. This Will stated:

"After all debt has been paid off …. from my savings account at both Westpac and UBank… I would like the remainder of my cash equally apportioned between five parties: Jason Yu, Kinson Yu, Steffen Aufsatz and Dominic Clarke"… and "Anything else I own that has not been named is to be handled by my executor at his discretion. And any proceeds will go to him as stated above."

Clear?

What exactly constitutes "cash"?

The Estate consisted of money in the bank, superannuation, a life insurance policy and employment entitlements from the ATO, such as outstanding wages and cashed-up long service and holiday leave. One of the four named "cash" beneficiaries argued that "cash" included the money in the bank, the superannuation, the life insurance and the employment entitlements as they would be considered "cash benefits or assets" within definitions adopted by the superannuation and taxation industries.

Due to the uncertainty, the Executor sought Directions from the Court as to the proper construction of the Will and what was to be considered as "cash". The Court ordered that "cash" constituted only the monies in the bank accounts and the monies that were paid by the employer for wages. That is, "cash" did not include the cashed-up long service leave and annual leave benefits, the superannuation or the life insurance payout.

How to avoid this?

Some of you may think that the Court got it wrong, others may agree with the Court’s conclusion. In other circumstances the Court’s conclusion may have been different. The point is, that the Court can only do its best to interpret what the testator actually meant, we won’t ever know for sure if that is what he wanted. We can guess that he probably would not have been happy about his Estate having to pay for all of the costs for two separate applications made to the Supreme Court. There is one way that you can ensure that your Estate goes to who you want it to go to and that is to have your Will correctly prepared by a lawyer.

Speak to our experienced Estate lawyers on the Gold Coast about getting a legal Will made for you. It takes less time than you think, and the amount of stress it can save your loved ones in the future makes it even more worthwhile. You can read some of our Will & Estate FAQs or please contact us today.