Thinking of using a Will Kit? Tips and Traps!

A will is one of the most important documents a person makes during their lifetime. Under the law a will does not have to be prepared by a lawyer, but it is a good idea to do so as there are several pitfalls which can be avoided if you know where to look.

Using a Will Kit

Many people attempt to write their own wills using a do-it-yourself will kit which is commonly available. If completed correctly these can be valid wills, but people are often unaware of the requirements for a valid will, for example not only does your will need to be witnessed, but there must be two witnesses who must both be present together when the will is signed. Also, neither person who witnesses the will should be a person who is also named as a beneficiary in the will as this raises the question of whether the will really represents the wishes of the deceased person or whether it was made under the direction of the beneficiary who witnessed it, for their own benefit. Wills which are improperly written, signed or witnessed can still be granted probate by the Supreme Court but it may require costly litigation in order to convince the Court that the will is valid.

A Recent Case

One man fell into an even more unlikely trap when he attempted to use a do-it-yourself will kit as a codicil (a document amending the terms of an earlier will) to his existing will. The man had his will prepared in full by his lawyer, it dealt with all his property and he was happy with its contents. However, the will contained a clause to the effect that “My Toyota motor vehicle shall go to my son.” In the years after making his will, the man sold his Toyota and bought a Mazda and he was concerned that the will would no longer operate to make sure his car went to his son.  He therefore purchased a do-it-yourself will kit from his local newsagent, wrote “My Mazda motor vehicle shall go to my son” in it, signed it before witnesses and stapled it to the back of his existing will.

The man then passed away and when it came time to administer his estate a problem was discovered. The will kit which the man had attempted to use as a codicil contained a standard clause at the top which read “I hereby revoke all previous testamentary documents.” This meant that any will he had made before signing the will kit was revoked and the new document took its place. Unfortunately, the new document dealt only with his Mazda and did not say anything about the rest of his property. This was not what he had intended but it was legally what he had done. His family then had to go to the additional expense of getting legal advice and bringing the matter before the Court for their lawyers to convince a judge of the man’s true intentions and ask that the mistake be fixed.

While it may be legal for a person to make their own will and will kits are available to purchase it is prudent to have your will prepared by a professional solicitor who can guide you through the process and ensure that what you intend is what takes place because a will is far more difficult and costly to fix after the fact. Here at Fox & Staniland Lawyers we can help you not only create a will to carry out your wishes but depending on your circumstances make a testamentary trust will with tax benefits for your beneficiaries.