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Why you should not write a DIY Will

An expertly written Will and a well-planned estate are the only way to truly secure your family’s future. The DIY trend on the internet may make it seem like writing your own Will is a simple and cost-effective way to organize your affairs. However, it’s not as easy as it seems. No matter how much you want to simplify the process, there’s no alternative to expert advice from an experienced wills and estate lawyer.

There are many risks involved in using a DIY Will, the main one being that it’s very easy to get something wrong. A simple mistake could end up costing the drafter’s family thousands of dollars in legal fees down the road.

We’ve seen many DIY Wills go horribly wrong, leading to expensive, complex and highly emotional legal disputes. In fact, our recent win in court by our very own Rebekah Sanfuentes is a testament to this.

Case Study:

The deceased’s wife made an application seeking to rectify ‘an error’ in the Will. Rebekah Sanfuentes acted on behalf of the adult daughter of the deceased.

The Will was a DIY Will where the deceased named his (now) wife as the executor.  Where the Will prompted him to list any specific gifts he would like to make, the deceased listed assets in his estate but did not name any persons who he intended to be the beneficiary of those assets.  The Will then prompted the deceased to state who he would like to leave his residuary estate (the remainder).  In this section the deceased wrote the word, ‘SAME’ followed by his request for cremation and then listing a few other assets.  Again, no beneficiary was named.

The rectification application filed in the Court by the deceased’s wife was to seek an order that there was a clerical error in the Will that needed to be rectified, namely she was seeking an order that ‘same’ meant herself given she was the only other name mentioned in the Will.  She was seeking her name to be included in the Will as the sole beneficiary in place of ‘same’.

If the applicant failed in her rectification application, she was then seeking to Probate an earlier document that was a statutory declaration that purported to be a Will.

If the applicant also failed on the statutory declaration being probated, she was then seeking to act as executor of the estate, to be distributed on intestacy (the rules that apply when there is no beneficiary).  However, the wife of the deceased had also put our client and her siblings on notice that, if intestacy was to apply, she would be filing a further application seeking further provision from the estate because she felt that the intestacy provisions did not provide for her sufficiently.

Our position was:

  1. There was no evidence to suggest what the deceased intended by the word ‘same’ and, in the absence of such evidence, the will cannot be rectified on the terms the applicant was seeking;
  2. Failing to include someone’s whole name was not a clerical error (ie a typo) but simply a misunderstanding of how to draft a Will;
  3. Being a DIY Will, the deceased did not see a Solicitor to discuss his intentions.  The wife also acknowledged that she did not know the DIY Will existed until after the deceased passed away.  All evidence suggested that the deceased did not discuss his intentions with any person.  As a result, no person could attest to what the deceased intended by the word, ‘same’;
  4. The wife was not arguing that the Will was not valid.  It was signed and witnessed appropriately and the wife did not argue that there was a suggestion the deceased lacked capacity.  Therefore, given the Will was signed after the statutory declaration, the Will revoked the statutory declaration (even if it was found to be a will).  As such, the statutory declaration could not be probated; and
  5. Due to the wife’s intention to bring a family provision application if intestacy was to apply, she was in a conflict to act as executor.

On behalf of our client we filed a cross-application seeking that the applicant’s application be entirely dismissed and our client be appointed as the Administror of the estate, to distribute the estate on intestacy.

The applicant’s application was dismissed and our client’s application was successful.  Our client’s costs were reimbursed from the estate and the applicant is to then reimburse the estate for our client’s costs to ensure beneficiaries are not out of pocket. This was indeed a very big win.

The wife will now not only have her own legal costs to pay, but also the legal costs of our client.

While the outcome of this case was favourable towards our client and the beneficiaries of the estate, it should also be used as an example of the risks involved in making a DIY Will.  When it comes to securing your family’s future, you should not take any chances.  Instructing an experienced lawyer to prepare your will and provide advice on estate planning is a small price to pay to protect your assets and ensure your wishes are adhered to after you pass away.  At McNamara Law, we get it right the first time. Contact our Wills and Estate lawyers today.


Date Published - November 12, 2022

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