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It is normal for people to put off making a Will because no one wants to think that the inevitable (dying) will happen to them. Whilst this is so, it is important for all persons to have a Will prepared in order to ensure their wishes are carried out upon their passing.

The Wills Act 1936 (SA), sets out certain legislative requirements which need to be met before your Will is legally enforceable. If you choose to save costs in preparing your Will by using a Will Kit from your local post office, you need to be certain of these legal requirements and comply with them. If you do not get it right, we can guarantee that it will cost your estate more money in legal fees to fix the mistakes than if you had just paid to have your Will drafted by a qualified solicitor at first place. The costs to fix the mistakes will also reduce any money or assets available to distribute to the people who you wish to benefit from your estate after your death.

Problems with using Will Kits

Below are some issues which often arise when the deceased has used a Will Kit to prepare their Will:

  1. Your wishes might not be recorded accurately. Legal terminology can be confusing and unfamiliar to many. If you are not trained or well versed in the legal sector, you might easily misinterpret the legal terms in the Will Kits while completing the forms. This will cause ambiguity in the Will which will result in a substantial delay in administering your estate as the Court is required to be certain of the terms in your will before it will agree to it and allow distributions to be made to beneficiaries. If the Court cannot interpret your Will, then it will be deemed invalid and the Court will decide who will receive your money and assets. If this happens, there is a risk that your estate might be distributed to a person that you wish to exclude from your Will.
  2.  It doesn’t cover everything. Preparing a Will is not as simple and straightforward as people think it is. It can be complicated depending on your family circumstances. For example, if you have former spouse or defacto partner, stepchildren, underage children, or even family members that you wish to be excluded, then in each of these circumstances, you require specific wording or a provision to ensure your wishes in relation to those people are met. If you want to exclude a family member who is otherwise entitled to your estate at law, then you must have an exclusion clause stating your intention and reason for excluding such person in your Will. This will minimise the risk of them contesting your Will after your death. It will of course not prevent it altogether.  There are also other important issues you should be aware of that the Will Kits might not have considered, such as relevant tax implications, distribution of estate, what happens when a gift fails and who to appoint as executor.
  3. Improperly executed Will is invalid. It is important to ensure that a Will is properly executed. There are specific requirements on how a Will should be signed and kept. Many people have overlooked these requirements and result in an invalid Will. For example, the Will must be signed in front of two witnesses and signed on every page.   If the formal requirements of a Will are not met, it may be held to be invalid and again, your estate will incur significant expense in having the Court attempt to interpret your wishes in the Will.  If the Will is invalid, you will be considered as passing away without a Will and your estate it will be distributed in accordance with provisions under the Administration and Probate Act 1919. If this happens,  people may benefit from your estate when you did not intend for them to do so whereas others might not get anything at all.

Given the above, we recommend that you see a lawyer to have your lawyer to prepare your Will. The costs of fixing the issues caused by a Will Kits is often far more than the cost of getting your Will properly prepared by a qualified solicitor who is experienced in estate planning. If you wish to avoid unnecessary costs and complications for those you leave behind, contact the professional team at Clarke Hemmerling Lawyers at 08 8333 2130 about preparing your Will for a fixed fee today.

This Blog was written by Renee Hii, Solicitor at Clarke Hemmerling Lawyers.

This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you.  Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.