Investors should keep their enthusiasm for the do-it-yourself approach in check when it comes to making a will, a lawyer specialisng in estate planning has warned.
A recent court case illustrates the cost and inconvenience that can result from making mistakes when writing a will, says Natasha Ng, a solicitor at Townsends Business and Corporate Lawyers.
The case involved the will of Andrew Lubke, who died in January last year. Lubke had purchased a DIY will kit for himself and his wife.
In the section where the name of the executor was required to be written, Lubke appointed “Brian Claridge Accounting” as executor of his estate.
This is where the trouble started because Lubke’s accountant was actually named “Brian Claridge Accounting Pty Ltd”, one of the directors being Brian Claridge.
Claridge had been the Lubke’s accountant for a number of years.
Ng says it was unclear whether the intended executor was Brian Claridge in his personal capacity or the accounting firm.
Because of this uncertainty a grant of probate was delayed. The matter ended up in the Supreme Court of Tasmania, where Lubke’s widow made an application for a determination that Brian Claridge was the executor.
Ng says that where there is uncertainty in a will the courts have the power to “construct” the part of the will after consideration of relevant evidence of the deceased’s intentions.
In the end the court appointed Brian Claridge in his personal capacity as executor.
Ng says: “You might say it all turned out alright in the end, so it’s no big deal. But there was considerable time, money, stress and inconvenience involved.
“The administration of the estate was delayed. The court application cost a bomb, which reduced the amount of the estate. The stress caused to Mrs Lubke was considerable.
“The drafting of an important document that directs who has the responsibility and control of your estate and to whom your assets are to be distributed should never be a DIY matter.”
Greg Welden, a principal at Welden & Coluccio Lawyers, says that apart from uncertainty over the names of executors, there are a number of other common problems with will prepared using DIY kits.
These include the testator not disposing of their entire estate (a partial intestacy), documents not being signed correctly, “scandalous” comments in a will that require application to a judge to have them removed, conditions being placed on gifts that cannot be enforced.
“Each of these scenarios has the potential to create serious delays and significant expense when it comes to finalising the estate,” Welden says.
The New South Wales Trustee and Guardian says it spends a fair amount of time sorting out wills that are ambiguous or are not valid. It recommends that people making wills should take professional advice.
When Choice conducted a review of DIY will kits a few years ago, it found that, generally, they can’t handle complex situations, such as blended families or self-managed superannuation funds.
Choice also found that the instructions in some kits are very basic and could confuse rather than make the process simple.
