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The risks of using DIY Will Kits


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Changes to Public Trustee Will and Enduring Power of Attorney Services

The State Government recently announced that as of 1 July 2019, the Public Trustee will only provide free-of-charge Will and Enduring Power of Attorney making services to those:

  • who are on a concession;
  • who are subject to projection orders issued by the South Australian Civil and Administrative Tribunal;
  • who are subject to other administration orders appointed by Courts.

Previously, the Public Trustee offered a reduced fee of approximately $300 for an Enduring Power of Attorney and Will to non-concession card holders.

Current clients of the Public Trustees have until 30 June 2019 to use the Public Trustee services if they wish to change their documents.

This change raises concerns about the potential increase in DIY Wills among welfare and legal groups.

Common issues with DIY Will Kits

While DIY Will Kits can be purchased from your local news agency for less than $50, the real cost comes when loved ones are left behind to administer a Will which might not comply with the requirements of the Wills Act 1936 (SA).

  1. Incorrect Names on a Will

What should the name on the Will be? Jon Smith? Or Jonathon Smith? Or Jonathon David Smith? Is it Jonathan or Jonathon? J Smith? J D Smith?

If the name identified on the Will is incorrect, the executor may have issues proving that Jon Smith is the same person as Jonathon David Smith to the Court, therefore resulting in a potential delay in administering the assets of the estate.

  1. Non-Compliance Execution

 If the Will was not prepared and witnessed by a Solicitor

Legislation notes that the signature must be made or acknowledged by the testator (person who is making the Will) in the presence of two or more witnesses, present at the same time.  The signatures of the witnesses must also be made and acknowledged in the presence of the testator.

Where a Will has been prepared and witnessed by a solicitor, there is a presumption that the Will has been correctly executed in accordance with these rules. Where it is not, the Court often requires that an Affidavit of Due Execution be provided by at least one of the witnesses to the Will.

 If a Will was only witnessed by one person

If the Will was only witnessed by one person, the DIY Will will be classified as an “informal Will”, which might require an Originating Application to be issued before the normal application for a Grant of Probate can be lodged.

  1. Locating witnesses of a Will

DIY wills are often witnessed by friends, neighbours or colleagues of the will-maker. Twenty or thirty years on, these witnesses may not reside in the same location. Attempting to locate witnesses can be very lengthy and costly to the estate.

  1. The condition of the Will

If the Will presents with removed staples or paperclip marks, or if there have been amendments to the Will which aren’t correctly initialled by the Will maker and his or her witnesses, the Court often requires an Affidavit of Plight Condition and Finding be provided.

  1. If the original Will is lost

If the original Will is lost, the executor may have to make an application to prove a copy of the Will is a true copy of the Will.

If no copy Will is found, the deceased will die intestate and the assets of the estate will be distributed in accordance with the Administration and Probate Act 1919 (SA).

At Andersons, we offer storage of your original Will in our safe custody at no extra cost. This means that no amendments will be made to the Will subsequent to signing.

  1. Partial Intestacy in Wills

Even if all of these hurdles are overcome, the construction of the Will itself often creates significant issues. If a part of the estate is not distributed by the Will, when the Will maker dies, he or she is deemed to have died partially intestate.

Situations of partial intestacy can occur if the Will maker:

  • was hiding assets from loved ones;
  • made their Will before they accrue the particular assets;
  • was not aware of their ownership of the relevant assets.

When a Will is prepared by a solicitor, it often includes a Residuary Gift clause which governs how the balance of the estate, after payment of all liabilities and administration expenses, is distributed. This reduces the possibility of a partial intestacy occurring.

Partial intestacy might also occur where all named beneficiaries in the Will have already died. DIY Will kits do not have substantial provisions for these back-up options.

  1. Estate vs Non-Estate Assets in Wills

There are various asset-holding structures that an individual can have.

Assets could be held in:

  • sole name;
  • joint names;
  • in a trust;
  • in a company.

It is a common misconception that everything that you have will be distributed under the Will, because all assets are “yours.” Only estate assets will pass on under the Will. Assets not covered by the Will are non-estate assets, such as:

  • life insurance benefits;
  • jointly owned property;
  • assets owned by trusts;
  • assets owned by companies;

It is crucial to correctly identify estate and non-estate assets when preparing a Will.

Conclusion

Using a DIY can significantly increase the legal fees of your estate and the level of stress your loved ones may go through. These problems are easily avoided when your Will is prepared and executed by a Solicitor.

Contact Andersons Solicitors Wills and Estates Team today to book an appointment.

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Get in touch with today's blog writer :
Lynn Pham 

Associate in Wills and Estates  and  Commercial Law and Business Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.