The rise in online do-it-yourself will kits has launched a spin-off product, an app that allows you to write a DIY will on your smartphone. But is this a case of technology making your life easier or technology creating more headaches in the future?
Anna Hacker, the former National Manager Estate Planning with Equity Trustees Limited (EQT), says that the trend of the DIY will has the potential to create estate planning disasters.
“Online Wills are bad enough, and people should always be wary of any service that implies drafting a Will is such a simple process that it can be done in a few minutes on the internet. But suggesting that an appropriate Will can be tapped out on your phone with a downloaded app is just too simplistic,” Ms Hacker said. “The most important aspect of making a Will is not the document itself, but the advice that goes with it because that’s what takes into account you as a person, the nuances in your personal relationships and your circumstances. With digital Wills and apps the advice step is missed – an app can’t detect subtleties or be proactive in how you deal with difficulties that might need to be dealt with in a Will.”
The main issue is that people who write their own wills don’t know the law. The Succession Act 1981 an extremely complex area of the law that only Accredited Specialists usually understand thoroughly. And if you look at the fine print on the DIY will apps and online will kits, the owners make lots of disclaimers about not taking responsibility for the finished product.
One of the biggest reasons a DIY will can end up in a court battle is because they’re unclear. An expert in drafting wills knows how to make the language clear and concise. But if a will is unclear, it may require the Supreme Court to interpret the meaning, which is a costly and time-consuming exercise. Sometimes people don’t address all the assets they own, or they don’t realise that marriage or a divorce can drastically alter their estate planning. Or they might make promises to a family member but fail to deliver on this in their DIY will.
Another reason do-it-yourself wills are inadequate is because they don’t take into account what-if scenarios, especially as circumstances change over time. Some of these circumstances might include:
- The birth of children
- Divorce and remarriage
- The addition of stepchildren or adopted children
- Owning a business
- Serious illness or disability
- The acquisition and disposal of assets and liabilities during a lifetime
- Going into an aged care facility
Each of these circumstances will vastly impact on how you will write a will – and in some cases, like marriage, automatically revoke any existing will. Failure to address any of these issues increases the likelihood that the will can be successfully challenged. The rise in the prevalence of the blended family is one common scenario. “It is increasingly common for Wills to be challenged in court whether by an ex-partner or another family member. In a number of cases, these challenges are upheld. While it is impossible to prevent a challenge, the best way to make it unlikely to succeed is to obtain expert assistance in developing the Estate Plan,” Ms Hacker said.
She adds that very simple mistakes can make a will meaningless. “For instance, a recent case dealt with a young man who had drafted a new Will but not yet signed it. As a result, his estranged partner was still the beneficiary of his entire estate while his parents and current partner at the time he died, received nothing”.
In another case, a simple error led to a costly court battle. Because this married couple accidentally signed each other’s wills, the court found that they’d died as if without a will. In this case, the law decides how assets will be distributed, which might be different to what the will-maker had wanted.
A DIY will may also be declared invalid. A will may be deemed invalid if:
- it was not the last will made by the deceased
- the deceased lacked the mental capacity to make a will
- the deceased did not understand the will (for example, the will maker did not understand English and was asked to sign it)
- someone else used undue influence or pressure to force the will maker to make the will
- the signature on the will has been forged or there has been some other fraud
- the will presented to the court had been revoked.
It’s crazy just how a simple mistake on a DIY will can lead to an estate battle. That is why it is so important to ensure you seek the right information to make sure it is right.
We always recommend that you seek specialist legal advice when it comes to your estate planning needs. We offer a FREE, 10-minute phone consultation. Contact us today for friendly, experienced advice.