Homemade Wills are often seen as the cheaper, more convenient way to deal with your assets upon your death. However, homemade Wills carry a significant risk and can create unnecessary issues for your family upon your death.
When you pass away, the executor appointed in your Will applies for a Grant of Probate, which is a document obtained from the Supreme Court of Victoria’s Probate Office confirming that a Will is a valid document. A Grant of Probate is generally required where an estate holds assets valued over $25,000.
For a Will to be valid, it must be made in writing, signed by the willmaker on each page, witnessed and signed by two people, and is signed by the willmaker with the intention of executing a Will. Often, a Will is invalid because it may not be signed on each page or may not be signed in the presence of two witnesses, one or both witnesses have not signed the Will, or the signatures of the willmaker across the pages does not match. If a witness cannot be located following the death of the willmaker to provide additional evidence to the Probate Office that explains the reasons for these discrepancies, it can create difficulties for an executor to obtain a Grant of Probate and may mean that the willmaker has left an invalid Will.
Beyond issues with the execution of the Will, a homemade Will can be fraught with errors. It may not appoint an executor. A willmaker may gift each individual asset that they own but not otherwise make provision for how any debts of their estate, such as funeral expenses, tax liabilities or legal costs associated with obtaining a Grant of Probate, are to be paid for. The Will may not provide for how the residue of their estate is to be administered, and if a willmaker acquires assets after signing the Will, those assets may then be distributed according to intestacy provisions. These issues may lead to a person’s estate not being administered in a way that they had intended.
Occasionally, there may be concerns about a willmaker’s testamentary capacity and their ability to understand the nature and effect of the Will. An experienced estate planning lawyer will be able to recognise the ‘red flags’ regarding a person’s capacity and take adequate steps at the time of preparing the Will to ensure that the Probate Office accepts the Will as valid when the time comes to obtain a Grant of Probate. If the Probate Office has any questions regarding the willmaker’s testamentary capacity (also known as a ‘requisition’), the estate planning lawyer would be able to respond to that requisition straight away.
A homemade Will may sound like a good idea. However, it can create difficulties for your executor to obtain a Grant of Probate upon your passing. If an executor cannot satisfy the Probate Office that your Will has been properly executed and is valid, then your estate may not be distributed according to that document and be distributed in a way that you may not have wanted or anticipated. Issues such as the execution of a Will and documentation regarding a willmaker’s testamentary capacity can also create delays in administering an estate, leading to delays for beneficiaries to receive their entitlements.
Estate planning is an important process in each person’s life, regardless of the value of their assets. The cost to have a Will properly prepared by an experienced estate planning lawyer will save your family time, difficulty and legal costs upon your passing.
If you need your estate planning to be completed and a Will prepared, Taurus Legal Management can assist you. We invite you to contact our office at info@tauruslawyers.com.au to meet with our estate planning team to start the process.