The dangers of at home will kits

Posted on June 1st, 2014

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by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

While many people find at home will kits more convenient and cost effective than having a Solicitor prepare his/her will, the reality is that at home will kits are fraught with dangers and may ultimately cost more in the long run.

The Succession Act (the Act) provides that a document must be in writing, be signed by the testator (the person making the will) and be witnessed by two independent adults in order to be considered a will. While this criteria seems relatively straight forward, they are often not satisfied when a person prepares his/her own will using an at home will kit.

If a will does not satisfy the requirements of the Act it may constitute an ‘informal will’ if it can be proven to the Court that the document, although not properly executed, should be considered the will of the testator as he/she intended that document to be a will. Proving this can be difficult, particularly when there are no witnesses to the testator’s signature or a single witness is no longer living. If the Court is not satisfied that there is a will (including an informal will) then an estate will be dealt with under the rules of intestacy.

Not only do at home will kits risk non-compliance with the Act, but by failing to seek legal advice a testator often does not consider all the implications of their intentions on his/her estate. In estate planning it is important to fully consider issues such as tax implications of certain bequests, potential family provision claims, applicable trust laws and potential alternate appointments or bequests where an executor or beneficiary predeceases the testator.  Each of these considerations may have significant financial impacts on an estate. After a testator has died there is no way to rectify a will where its effect is different to what was intended by the testator unless all the beneficiaries of the estate agree.

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in residential and commercial property transactions and estate planning and administration.  If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

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