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The importance of a professionally drafted will

What are the benefits of a will?

Wills are beneficial to all individuals over the age of 18, no matter how few assets they may have. A professionally drafted will provides family members and loved ones with clear instructions on how to distribute your assets after you die. It ensures that your assets go to the people you want them to go to.

What if you don’t have a will?

If you die without leaving a will, this is known as ‘dying intestate’ and your assets will be distributed according to the law in Victoria (or other jurisdiction in which you reside). As the laws of intestacy apply to everyone who dies without a will, in the absence of a will your wishes are not taken into effect – legislation is the deciding factor.

What are the issues of DIY or self-made wills?

There are common issues of creating your own will including but not limited to, ambiguity, incorrect legal language and failure to meet formal requirements as to signing and witnessing. The absence of a professional lawyer may lead to disputes of the will and difficulty deciphering your needs and wants. This can lead to unnecessary costs which will be paid from your estate and can cause added stress to an already difficult situation.

In the case of Rogers v Rogers Young [2016], where a mother passed away, her DIY will kit instructed all her estate to go to her only daughter Alexandra. The estate was to be held in a trust account until Alexandra turned 25 and at the time she was 18 years old. Unfortunately the DIY will was ambiguous and the daughter had to pay $200,000 in legal fees to have the court decipher it. This money came out of her mother’s estate. Master Sanderson during the case stated ‘If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.’[1]

Selecting a testamentary guardian.

This is crucial if you have children in your care. In the event of yours and your partners death, you can nominate a testamentary guardian in your will.  The testamentary guardian is the person who will make parent like decisions for your children. Nominating a testamentary guardian of your choice in a will is an important step to ensure that your childrens upbringing aligns with your wishes and values.

Why employ a legal professional to help write my will?

It is highly recommended to have a lawyer to help draw a will as they can provide legal expertise to ensure your will is accurately and comprehensively written. Having a professional person assist you is beneficial as they can customise the document to your specific needs and help minimise the risk of legal challenge. The professional guidance helps ensure your wishes are clearly stated and legally binding in a formal document.

Main Benefits of having Lawyers draft your will

  • Level of sophistication
  • Choosing who administers your estate
    • e.g. Finding appropriate executor who does not reside overseas
    • reduces complication when completing paperwork
  • Formal document & therefore no room for error
    • will not require clarification from court
    • reduces overall cost
  • Ensures you cover all bases

[1] Rogers v RogersYoung [2016] WASC 208.