Pitfalls of Will Kits

by Michelle Rockliff

Making a valid Will is the only way you can ensure your assets will be distributed according to your wishes when you die. Studies have shown that at least 40% of Australians do not have a valid Will.

A Will must conform to strict legal requirements otherwise the Courts may decide the Will is invalid. If this is the case, your assets will be distributed according to a pre-determined Government formula and not as you had intended. If you have no surviving relations closer than cousins, in such circumstances your estate will pass to the Government.

By using a Will Kit, you risk making a mistake, creating uncertainty (which can render the whole of the Will or some clauses in the Will invalid) or lose opportunities for good estate planning which may include leaving assets in a tax effective way.

The ordinary meaning of words is not necessarily the same as their legal meaning. Ambiguous wording is very common in homemade Wills and may result in substantial costs and delay in having the Supreme Court resolve the ambiguity. Therefore, the precise wording of a Will is a specialised and important legal task.

Once a Will has been drafted, it is important that the Will is executed (signed) properly. There are also strict legal requirements with respect to how a Will should be signed to ensure that the Will is valid. We have observed on countless occasions, notwithstanding detailed instructions/advice being given to persons executing documents including Wills, where the instructions/advice have not been followed and, therefore, the Will has not been properly executed in accordance with the requirements set out in the legislation (Succession Act 2006 (NSW)).

You may have worked hard to build up your assets in your estate. We consider you are doing a disservice to yourself and your family if you do not seek legal advice from a Wills and Probate Lawyer for the purpose of estate planning, ensuring you have a valid Will and that your wishes are properly recorded and carried out. It is, therefore, advisable to have your Will professionally drafted for this purpose.

For further information or assistance please contact Rockliffs on 02 9299 4912 or email us at lawyers@rockliffs.com.au


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