The Pitfalls of the Homemade Will

Some years ago an elderly client died. She was a dear old soul but had an almost pathological dislike of spending money, so we will call her Mrs Scrooge.  Shortly after her death her family came into the office and with a flourish produced several pages of notepaper closely covered in handwriting, and advised us this was Mum’s last will.  ‘She did it herself to save on legal fees,’ they said proudly.

The handwritten document was obviously intended to be a will and clearly disposed of some of Mrs Scrooge’s property.  As she owned land and other major assets it was necessary to obtain probate of the will in the High Court.  That’s when the problems arose, and there were quite a number. The homemade will had not appointed an executor, it was not dated, it did not clearly dispose of all of Mrs Scrooge’s assets and although signed by two independent witnesses, the will did not clearly state the witnesses were together at the same time with Mrs Scrooge when the will was signed (this last factor is an important requirement of the Wills Act).

We had to get the family to agree which member was going to apply to administer the will.  The others were required to sign formal consents and waivers and an application was made for a grant of letters of administration appointing an administrator, with the homemade will annexed. This is a more complicated and expensive procedure than a simple application for a grant of probate made by a named executor.

The witnesses to the will had to be tracked down and brought in to be interviewed and confirm the circumstances around the signing of the document. They were required to sign affidavits to be filed in the Court, confirming they were both present with Mrs Scrooge when the will was signed.  They also confirmed the date the will was signed.  This was important as Mrs Scrooge had other wills, and without the date being confirmed there was no evidence the handwritten will was in fact her last one.

As the will had no general or residual property type clause but only dealt with some specific property, when the estate was finally administered by the appointed administrator, part of the estate went according to the will and part was distributed under the provisions of the Administration Act, as if Mrs Scrooge had never made a will at all.

The end result was any savings Mrs Scrooge had made by preparing her own will had been lost at least ten-fold by the additional legal expenses arising out of the problems that had to be dealt with to obtain probate and administer her estate.  The estate administration also took much longer to complete than normal.

It could be argued lawyers have a vested interest in telling people they should use them, and not try to prepare their own wills, although I would suggest experience has shown homemade wills often lead to extra work for the lawyers and the reverse situation really applies.  However, most lawyers try to avoid having to sort out messes if they can.

So should you never try and do your own will? What about ‘stationers’ form wills’ and the ones you can buy on-line these days?  Like everything in life, it is your personal decision, but I would certainly advise extreme caution with them. There is an argument, if your family circumstances and assets are very simple and straightforward then using a form will may be quite satisfactory.  The problem is, do you know without getting advice from a lawyer and discussing your family situation with the lawyer, that everything is as simple as you believe? Are you sure you have followed the will instructions accurately? If your will is challenged by a family member, the fact you have not discussed the will with a lawyer may make a judge more likely to conclude you had not properly considered some important issue should have been taken into account.

As I have mentioned previously our ‘legal lives’ have become much more complicated over the past twenty years or so. The once common so-called “standard will’ namely; all to the surviving spouses and then to the kids, has almost become a rarity in these days of reformatted families, family trusts, contracting out agreements, different types of domestic relationships and so forth. Apart from the dangers of overlooking a basic technical formality required by the Wills Act when preparing your own will, the risks of a challenge to the substance of a will are now much greater than ever. A will, carefully prepared after discussion with a lawyer who knows your circumstances, should raise the bar somewhat for anyone who is considering challenging your will.

The old saying about free things not being worth much, unfortunately, probably applies to your homemade will too. DIY may be in our genes as the television advert says, but DIY wills might need another chromosome or two.

Disclaimer: The information contained in this article is of a general and summarised nature only.  It should not be used as a substitute for obtaining personal legal advice.

(c) T J Carson