Making your own will seems straightforward. You can buy a will kit from the newsagent, download a template online, or simply handwrite your wishes on a piece of paper. It costs very little and feels like the job is done.
Unfortunately, homemade wills are one of the most common sources of estate administration problems — and the person who made the will is no longer around to fix them.
The Formal Requirements
A valid will in Victoria must comply with the formal requirements set out in the Wills Act 1997 (Vic). The will must be:
- in writing
- signed by the willmaker (or by someone else in the willmaker’s presence and at their direction)
- the signature must be made or acknowledged in the presence of two witnesses present at the same time
- each witness must sign the will in the presence of the willmaker
A will that does not comply with these requirements is not automatically invalid. The Supreme Court has the power under s.9 of the Wills Act 1997 (Vic) to admit an informal will to probate if it is satisfied the document embodies the deceased’s testamentary intentions. But that application takes time, costs money, and the outcome is not guaranteed.
The formal requirements sound simple but in practice, homemade wills fail them regularly.
What Goes Wrong
Witnessing errors
This is the most common problem. The witnesses must be present at the same time when the willmaker signs. A will signed in front of one witness and then taken to a second witness separately is not validly executed. A will signed and then shown to witnesses after the fact is not validly executed. A beneficiary under the will, or the spouse of a beneficiary, should not act as a witness, as this can cause the gift to that beneficiary to fail under s.13 of the Wills Act 1997 (Vic).
Even where a homemade will appears to have been properly executed, the Registrar of Probates will often require an affidavit of due execution from one or both witnesses confirming that the formal requirements were properly followed at the time of signing. This is because a homemade will frequently gives the Registrar no comfort that the execution was done correctly. Tracking down witnesses years after the will was signed can be difficult, and if a witness has died or cannot be located the application becomes significantly more complex and costly. This is additional work and cost that does not arise with a professionally prepared will executed under proper supervision.
Margaret and her neighbour
Margaret completed a will kit at her kitchen table, signed it, and then took it next door for her neighbour to witness. She did the same with a second neighbour the following day. Both neighbours signed. Margaret believed her will was valid. It was not. Different pens were used by Margaret and her two neighbours. The witnesses were not present at the same time when Margaret signed, and neither witnessed the other’s signature in the presence of the willmaker. Margaret’s estate passed on intestacy and not in accordance with her wishes.
Unclear or ambiguous gifts
Homemade wills frequently contain gifts that are impossible to give effect to, or that mean something different to the lawyer reading them than they did to the person writing them.
Common examples include:
- “I leave my house to my daughter” — but the willmaker owned two properties, or owned the property jointly with another person, or had sold the property before they died
- “I leave my savings equally between my children” — does “savings” mean all bank accounts, or only the ones the willmaker thought of as savings accounts?
- “I leave my jewellery to be divided between my nieces as they see fit” — what happens if the nieces cannot agree?
Ambiguity in a will requires the executor, and often the court, to determine what the willmaker actually meant. It causes delay, cost, and family conflict.
Gifts that fail
A gift in a will can fail for reasons the willmaker did not anticipate:
- The beneficiary dies before the willmaker and there is no substitution clause — the gift falls into the residue, or if it is the residue, the estate or that portion passes on intestacy
- The property given has been sold or no longer exists at the date of death — this is called ademption, and it means the beneficiary receives nothing
- The will does not include a residue clause — anything not specifically gifted has nowhere to go and passes on intestacy
Homemade wills and blended families
The consequences of a poorly drafted will are most acute in blended families. A will that leaves “everything to my wife and then to my children” in a second marriage can produce outcomes the willmaker never intended — and that cause lasting damage to family relationships.
Bob and his will kit
Bob completed a will kit after his second marriage to Carol. He left everything to Carol and then “equally between my children.” Bob had two children from his first marriage and Carol had three children from hers. Bob did not specify whose children he meant. When Bob died, the question of whether “my children” meant only his biological children, or Carol’s children as well, required a court application to resolve. The legal costs were paid from the estate. The family has not spoken since.
Superannuation and jointly owned property
A very common misunderstanding in homemade wills is the belief that a will controls everything a person owns. It does not.
Superannuation does not form part of your estate and cannot be directed by your will. It is dealt with by the superannuation trustee in accordance with any binding death benefit nomination, or at the trustee’s discretion if there is no valid nomination.
Jointly owned property passes automatically to the surviving joint tenant regardless of what the will says and does not form part of the estate at all.
A will kit cannot tell you what you do not know to ask. A homemade will that purports to leave “all my assets including my superannuation to my sister” does not, and cannot, direct the superannuation fund. The willmaker believed the job was done. It was not.
When the Court Gets Involved
When a homemade will creates problems that cannot be resolved without court intervention, including an informal will application, an application to construe an ambiguous clause, a family provision claim made easier by poor drafting, or an intestacy caused by failed execution. The costs usually come out of the estate. The beneficiaries receive less. The administration takes longer. And the willmaker’s actual wishes may never be given full effect.
A professionally drafted will costs a fraction of what a contested or defective homemade will costs to fix, if it can be fixed at all.
What Should You Do?
If you have a homemade will, or a will kit will that has never been reviewed by a lawyer, it is worth having it checked. Problems that are identified while you are alive can be fixed. Problems identified after you have died cannot.
For assistance with your will and estate planning contact Fleur Craig of Armour-Craig Legal on (03) 5636 4986 or fleur@armourcraiglegal.com.au.